V 



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THE 



POWERS, DUTIES, 

AND 

LIABILITIES 

OP 

TOWN AND PARISH OFFICERS 

IN MASSACHUSETTS; 



WITH FORMS AND PARLIAMENTARY RULES FOR CON- 
FCTING feTW^ AND OTHER MEETINGS. 




BY 

WILLIAM A. HERRICK 

i) 



SECOND EDITION. 



BOSTON: 
LITTLE, BROWN, AND COMPANY. 

1880. 



3k 






Entered according to Act of Congress, in the year 1879, by 

LITTLE, BROWN, AND CO., 

In the Office of the Librarian of Congress, at Washington. 



University Press: John Wilson & Son, 
Cambridge. 



ADVERTISEMENT 



TO THE SECOND EDITION. 



This second edition of the " Town Officer " has 
been prepared upon the same plan, and in the same 
manner, as the former edition, and states the law as 
it exists at the present time. Such of the Acts of the 
Legislature of 1879 as pertain to the duties of Town 
and Parish Officers are given in the Addenda. The 
chapter on " State Aid to Soldiers and Sailors, &c." 
has been omitted, as the provisions of law with refer- 
ence to granting such aid expire with this year. It 
is almost needless to add, that the changes in the law 
since the former edition have been very numerous, 
affecting almost every subject. A great deal of labor 
has been expended to state the law accurately and 
intelligibly. 

W. A. H. 

Boston, April 10, 1879. 



PREFACE. 



I HAVE endeavored in the following pages to bring 
together in a convenient order, for the use of Town 
and Parish Officers and all citizens interested in the 
administration of town affairs, all the statutes now in 
force in this Commonwealth pertaining to the duties, 
powers, and liabilities of towns, parishes, and their 
officers. To these statutes have been added such 
comments, drawn from the decisions of the Supreme 
Judicial Court, as I thought would serve to explain 
or illustrate them to such as were called upon to act 
under them as officers of towns or parishes. The 
matter in the larger type, except that enclosed in 
brackets, consists of the statutes printed verbatim, so 
that any one may rely on them without the necessity 
of reference to the originals. The matter in the 
smaller type consists of the comments mentioned 
above, and in some instances of statutes, abridged, 
where this could be done without danger of mistake, 
and the entire statute contained matter unnecessary 
to town officers. I earnestly hope, and I believe from 
the care bestowed upon it, that the book will be 
found trustworthy. In the Appendix are brief rules 



VI PREFACE. 

for conducting town and other meetings, and forms 
for drafting the papers to be made by town officers. 
The Addenda contains the statutes enacted by the 
Legislature of 1870, since the body of the book was 
printed. The larger part of the legislation of this 
year will be found, in connection with the subjects 
affected by it. The law of the duties of town officers 
relating to the sale of intoxicating liquors is so liable 
to change, and so readily found in the statutes usually 
of one year, that it was thought best to omit it. 

W. A. H. 

Boston, June 24, 1870. 



TABLE OF CONTENTS. 



CHAPTER I. 

PAGE 

General Powers and Duties of Towns 1-28 



CHAPTER II. 
Town Records 29-32 

CHAPTER III. 
Town Meetings 33-37 

CHAPTER IV. 

Voters. — The Manner of Conducting Elections and Returning Votes 38-52 

CHAPTER V. 
Moderators 53-54 

CHAPTER VI. 
Election and Appointment of Town Officers 55-61 

CHAPTER VII. 
General Duties of Town Clerk 62-69 

CHAPTER VIII. 
General Powers and Duties of Selectmen 70-74 

CHAPTER IX. 
Assessors of Taxes 75-84 



Vlll TABLE OF CONTENTS. 

CHAPTER X 

PAGE 

Assessment of Taxes 85-97 

CHAPTER XI. 
Persons and Property Subject to Taxation 98-99 

CHAPTER XII. 
Persons and Property Exempted from Taxation 100-104 

CHAPTER XIIL 
Taxes upon Certain Corporations 105-111 

CHAPTER XIV. 
Where Polls and Property shall be Assessed 112-120 

CHAPTER XV. 
Collection of Taxes 121-146 

CHAPTER XVI. 
Town Treasurer 147-148 

CHAPTER XVII. 

Constables and their Duties * . 149-152 

CHAPTER XVIII. 
Watch and Ward . 153-157 

CHAPTER XIX. 

Duties of Overseers of the Poor, and the Support of Paupers . ... 158-176 

CHAPTER XX. 
The Settlement of Paupers 177-184 

CHAPTER XXI. 
Workhouses and Almshouses 185-189 



TABLE OF CONTENTS. IX 

CHAPTER XXII. 

PAGE 

Laying out and Discontinuance of Highways 190-210 

CHAPTER XXIII. 
Laying Out and Discontinuance of Town and Private Ways . . . 211-221 

CHAPTER XXIV. 
Betterment Law 222-225 

CHAPTER XXV. 

Surveyors and Repairs of Highways 226-249 

CHAPTER XXVI 

Railroads crossing Highways, &c 250-263 

CHAPTER XXVII. 
Construction of Roads to Swamps, Mines, &c 264-266 

CHAPTER XXVIII. 

Dedication of Ways, Ascertaining Location, Erection of Monuments, 

and Ways over Durying-G rounds ' 267-270 

CHAPTER XXIX. 
Sewers and Drains 271-276 

CHAPTER XXX. 
Fences and Fence Viewers 277-283 

CHAPTER XXXI. 

Pounds and Impounding Cattle. — Field Drivers 284-291 

CHAPTER XXXII. 
Public Schools 292-305 

CHAPTER XXXIII. 
School Funds 306-308 



X TABLE OF CONTENTS. 

CHAPTER XXXIV. 

PAGE 

School Registers and Returns 309-312 

CHAPTER XXXV. 
Attendance of Children in the Schools 313-315 

CHAPTER XXXVI. 

Employment of Children and Regulations respecting them . . . 316-318 

CHAPTER XXXVII. 

Truant Children, Absentees from School, and Neglected Children . 319-323 

CHAPTER XXXVIII. 
Jurors 324-329 

CHAPTER XXXIX. 
Census 330-331 

CHAPTER XL. 
Weights and Measures / 332-342 

CHAPTER XLI. 
Inspection and Sale of Articles 343-363 

CHAPTER XLII. 
Certain Licenses granted by Selectmen 364-377 

CHAPTER XLIII. 

Sales by Auctioneers, Hawkers, and Pedlers 378-385 

CHAPTER XLIV. 
Masters, Apprentices, and Servants 386-390 

CHAPTER XLV. 
Fires and Fire Departments 391-407 



TABLE OF CONTENTS. XI 

CHAPTER XL VI. 

PAGE 

Duties of Selectmen as to Offences against the Public Peace . . . 408-410 

CHAPTER XLVII. 
Duties of Town Officers as to the Suppression of Common Nuisances 411-414 

CHAPTER XLVIII. 
Duties of Selectmen as to Diseased Cattle 415-418 

CHAPTER XLIX. 
Registry and Returns of Births, Marriages, and Deaths 419-424 

CHAPTER L. 

Board of Health 425-442 

CHAPTER EI. 
The Promotion of Anatomical Science 443-444 

CHAPTER LIE 

Cemeteries and Burials 445-450 

CHAPTER EIII. 

Street Kailways 451-457 

CHAPTER EIV. 
,raph Companies 458-459 

CHAPTER LV. 

Storage, Sale, and Inspection of Petroleum Oil and its Products . 460-464 

CHAPTER LYE 
Concerning Dogs. — Protection of Sheep, &c 465-472 

CHAPTER LVII. 
Herring Fisheries . . 473-474 



Xll TABLE OF CONTENTS. 

CHAPTER LVIII. 

PAGE 

Shell Fish 475-476 

CHAPTER LIX. 

Power of Towns to purchase Water Rights 477-479 

CHAPTER LX. 
Duties of Town Officers under Militia Law 480-484 

CHAPTER LXI. 

Duties of Selectmen to return Industrial Statistics as to Race 

Grounds. — Penalties 485-486 

CHAPTER LXIL 
Parishes and Religious Societies 487-497 

CHAPTER LXIII. 

Donations and Conveyances for Pious and Charitable Uses . . . 498-500 

CHAPTER LXIV. 

Associations for Religious, Charitable, and Educational Purposes . 501-505 



APPENDIX. — Parliamentary Rules for conducting Town and 

other Meetings 507-512 

FORMS 513-531 

ADDENDA. — Certain Statutes of 1879 enacted since the body of 

this book was printed, and Miscellaneous Matter ..... 532-538 



INDEX 539-570 



TOWN AND PARISH OFFICER. 



CHAPTER I. 
GENERAL POWERS AND DUTIES OF TOWNS. 

1. Towns shall continue to be bodies corporate with 
all the {towers heretofore exercised by them, and sub- 
ject to all the duties to which they have heretofore been 
subject. 1 The word "town" may be construed to include 
cities and districts, unless such construction would be re- 
pugnant to the provisions of any statute specially relating 
to such cities or districts. 9 

They are qua corporation! with limited powers coextensive with 
the duties imposed upon them bj statute or usage, but deficient in 
many of the powers incident to the general character of corpora- 
tions. 8 

2. The boundary lines of towns shall remain as now 
established. 

3. There shall be a perambulation of town lines, and 
they shall be run and the marks renewed, once in every 
five years, by two or more of the selectmen of each town. 
or such substitutes as they in writing appoint for that pur- 
pose. After every such renewal the proceedings shall be 
recorded in the records of the respective towns. 

Selectmen have no authority to change the boundaries or to adjudi- 
cate upon the limits of towns, hut only to ascertain existing lines and 
renew old marks and monuments. 4 

1 Gen. Stats, ch. 18, § 1. Linchan v. Cambridge, 109 Mass. 

2 Gen. Stats, ch. 3, § 7, cl. 17, and 212. 

ch. 18, § 77. 4 Commonwealth v. Heffron, 102 

■ Rum ford ?■. Wood, 13 Mass. Mass. L51. 
193; Hill r. Boston, 122 Mass. H9\ 

1 



2 TOWN AND PARISH OFFICER. 

4. Towns may in their corporate capacity sue and be 
sued by the name of the town, and may appoint all neces- 
sary agents and attorneys in that behalf. 1 

But selectmen are not such agents without special authority. 2 
Towns may submit suits to arbitration. 3 

5. They may hold real estate for the public use of the 
inhabitants, and may convey the same, either by a vote of 
the inhabitants, or by a deed of their committee or agent ; 
may hold personal estate for the public use of the inhabi- 
tants, and alienate and dispose of the same by vote or other- 
wise ; may hold real and personal estate in trust for the 
support of schools and for the promotion of education within 
the limits of the town; may make contracts necessary 
and convenient for the exercise of their corporate powers ; 
and may make orders for the disposal or use of their corpo- 
rate property as they may judge necessary or expedient for 
the interest of the inhabitants. 4 

They may take and hold devises and bequests for appropriate 
charitable uses, 5 and in certain cases take, hold, and sell tax titles. 6 
They may also purchase water rights for the purpose of supplying 
their inhabitants with pure water. 7 

6. When a town is required to enter into a recogni- 
zance, the selectmen may by an order or vote authorize 
any person to enter into the recognizance in the name and 
behalf of the town, and it shall be binding like any other 
contract made by such town. No surety shall be required 
in such recognizance. 

7. They may, at legal meetings, grant and vote such 
sums as they judge necessary for the following pur- 
poses : — 

For the support of town schools ; 

For the relief, support, maintenance, and employment 
of the poor ; 

1 Gen. Stats, ch.. 18, §§ 2, 3, 8. 5 D rul y v . Natick, 10 Allen, 169; 

2 Walpole v. Gray, 11 Allen, 149. Hill v. Boston, 122 Mass. 349. 

3 Campbell v. Upton, 113 Mass. 6 Stats. 1862, ch. 183. 

70. 7 stats. 1870, ch. 94. See chapter 

4 Gen. Stats, ch. 18, § 9. concerning this subject hereafter. 



GENERAL POWERS AND DUTIES OF TOWNS. 3 

For laying out, discontinuing, making, altering, and 
repairing highways and town-ways, and for labor and 
materials to be used thereon ; 

For procuring the writing and publishing of their town 
histories ; 

For burial-grounds ; 

For encouraging the destruction of noxious animals; 

For all other necessary charges arising therein ; 1 

8. The foregoing seems not to have been intended to be an enume- 
ration of objects and purposes for which towns may raise money, 
but the expression of ■ few Leading and prominent objects, by way 
of instance, and i general reference to others under the term "other 

Mary charges." 9 But these "other necessary charges" arc 
limited to objects of a like character with those preyionsly specified.' 

9. And courts have held such charges to embrace building a 
market-house; 4 repairing a meeting-house a^ compensation for its 
use for town meetings, and paying a sexton u>v repairing 
fire-engines, whether belonging to the town or private owners; 
pairing a public clock ; 7 constructing reservoirs for water to supply 
fire-engines; 8 and raising money to indemnify the officers of the 
town against liabilities incurred or damages sustained in th< 
discharge of their duties, and sometimes eren when in good faith 
they exceed their authority; 9 and making additional compensation 
to a person for labor done by him in buildings town-house, although 

as a contractor under another person with whom the town had con- 
tracted to build it for a fixed sum. 1 ' 

1<>. Bui towns cannot legally raise or appropriate money to cele- 
brate anniversaries, BUCh as the fourth of July, or the surrender of 

Cornwallis. Upon this point Bigelow, C. J., says : "The appropria- 
tion is neither necessary to the exercise of any power expressly 
granted to the city; nor is it incidental to any right or authority, 
which, though not expressly granted, lias its origin in well-settled 
usage, and is founded upon the necessities, convenience, or even the 

comfort, of the inhabitants. This is the extreme limit, of the power 
of towib and cities to grant money, as settled by repeated adjudica- 

1 Gen. Stats, eh. 18, §§ 10, 18. 6 Allen v. Taunton, 10 Tick. 485. 

2 Shaw, (\ J., Willani r. Xew- " Willard v. Xrwburyport, 12 
buryport, 12 Pick. 227. Tick. 227. 

• Allen v. Marion, 11 Allen, 108; s Hardy v. Waltham, °> Met. 163. 

Coolidgev. Brookline, 114 Mass. 594. 9 Bancroft a Lynnfield, 18 Pick. 

« Spaulding v. Lowell, 23 Pick. 71. 5G8; Fuller r. Groton, 11 Gray, 340. 

6 Woodbury r. Hamilton, 6 Pick. 1° Friend t\ Gilbert, 108 Mass. 

101. 408. 



4 TOWN AND PARISH OFFICER. 

tions of this court." x Nor can towns appropriate money to pay the 
expenses incurred by individuals in procuring an act of the legisla- 
ture incorporating the town ; 2 nor in opposing before the legislature 
the annexation of the whole or a part of its territory to another 
town j 3 nor in petitioning the legislature to annex the town to an- 
other town ; 4 nor in purchasing uniforms for a military company ; 5 
nor to distribute money upon those liable to pay a poll-tax, or in 
payment of poll-taxes. 6 Cities are now allowed by a late statute to 
appropriate a certain sum for celebrating holidays, and "other pur- 
poses of a public nature," upon a certain vote, 7 and cities and towns 
are required in certain cases to provide armories, 8 and any town may 
appropriate money to be expended by the school committee in their 
discretion in providing for the conveyance of pupils to and from the 
public schools. 9 A town may at its annual meeting raise by taxation 
a sum of money not exceeding one tenth of one per cent of its 
assessed valuation, for the year last preceding, for the purpose of 
celebrating any centennial anniversary of its own incorporation, or 
for the purpose of celebrating the one hundredth anniversary of the 
declaration of independence. 10 

11. " Legal meetings " include special meetings called after the 
annual meeting. 11 The purposes for which money is raised should be 
expressed in the vote, though it has been held sufficient when the 
objects were stated in town meeting by the chairman of the select- 
men, where the parties afterwards objecting to the appropriation 
were present and made no objection. 12 

12. Towns may appropriate money for erecting monuments in 
memory of their soldiers who have died, or may die, in the service 
of our country in the present war. 13 Towns may at any legal meet- 
ing vote such sums of money as they judge necessary, for the pur- 
pose of erecting headstones or other monuments at the graves of 
persons who served in the military or naval service of the United 
States in the war of the Rebellion : provided, that no town shall 
expend money raised under this act, except in cases where the soldier 
or sailor shall have been accredited to the quota of said town. 14 The 
inhabitants of any town on the coast of Massachusetts are authorized 
to raise money and expend the same in defending such city or town 
against the public enemies of the United States ; but no such expen- 

i Hood v. Lynn, 1 Allen, 105, and ' 7 Stats. 1861, ch. 165. 

cases cited. 8 stats. 1878, ch. 265, §§ 88-91. 

2 Frost v. Belmont, 6 Allen, 152. 9 Stats. 1869, ch. 132. 

3 Coolidge v. Brookline, 114 Mass. i« Stats. 1874, ch. 112. 

592. u Freeland v. Hastings, 10 Allen, 

4 Minot v. Roxbury, 112 Mass. 3. 570. 

& Claflin v. Hopkinton, 4 Gray, 12 Ibid. 

502. is Stats. 1864, ch. 100. 

6 Allen v. Marion, 11 Allen, 108; 14 Stats. 1873, ch. 335. 
Cooley v. Grantville, 10 Cush. 56. 



GENERAL POWERS AND DUTIES OF TOWNS. 5 

ditures shall be made without the approval of the governor and 
council, nor any thing done in contravention of the constitution and 
laws of the United States. 1 

13. Any town ma}', at a legal meeting, grant and vote 
a sum not exceeding twenty-five cents for each of its rata- 
ble polls in the year next preceding that in which such 
appropriation is made, to be expended under the direction 
of the selectmen in premiums, or in any such manner as 
they may deem most effectual to encourage the planting of 
shade-trees by the owners of real estate, upon the public 
squares, or highways, adjoining such real estate. 2 

14. The inhabitants of any town, and the city council 
of any city, are hereby authorized to raise money and 
expend the same for the purpose of procuring the detec- 
tion and apprehension of persons committing any felony 
in such place. 1 

15. Every town containing more than three thousand 
inhabitants shall, and every town may. keep and maintain 
a secure and convenient lock-up or place of security, to 
which such persons as may be arretted or detained by an 
officer without a warrant may be committed ; and a police 
court or justice of the peace may commit, upon continua- 
tion for further examination, any prisoner charged with a 
bailable Offence, and not recognizing, to the lock-up in the 
town in which the court is held, whenever in his opinion it 
may be deemed safe and commodious and costs may be 
saved thereby. 

10. For the expenses of detention and support in cases 
provided in the above section, there may be charged upon 
the warrant, or other precept, it' any, fifty cents a day. or at 
that rate for the fractional part of a day. and no more, which 
shall be paid to the town or city maintaining the same. 4 

No charge shall he made for the detention and support of persons 
Committed to any lock-up, except as ahove provided. 4 

1 Stats. 1863, ch. 118. State prison, and no other, is a fel- 

^ State. 1869, ch. 381. ony. Gen. Stats, ch. 1G8, § 1. 

8 lb. 1869, eh. 206. By statute * Stats. 1802, ch. 21G, §§ 16, 17; 

in this State, any crime punishable Stats. 1876, ch. 159. 

by death or imprisonment in the 



b TOWN AND PARISH OFFICER. 

17. The city council of any city and the inhabitants of 
any town, at a town meeting duly held for that purpose, 
may select and take any parcel or parcels of land within 
the limits of such city or town, not appropriated to public 
uses, as a place for the erection of a city or town hall, for 
the use of such city or town, or for the enlargement of any 
existing city or town hall lot ; but no lot so taken or en- 
larged shall exceed in extent one acre. The city or town 
shall, within sixty days after such taking, file for record in 
the registry of deeds for the county or district in which the 
land is situated, a description of the lands so taken, as 
certain as is required in a common conveyance of land, 
and a statement of the purpose for which such lands were 
taken, which description and statement shall be signed by 
the mayor of the city or by the selectmen of the town, or 
a major part thereof; and the title of land so taken shall 
vest in such city or town from the time of the filing of said 
description and statement. 

18. All damages sustained by any person by reason of 
the taking of any land for the purposes aforesaid, shall be 
paid by the city or town ; and if the mayor and aldermen 
or the selectmen shall fail to agree upon such damages 
with the owner of such land, the same may be assessed 
and determined by a jury in the manner provided by law 
in the case of the lajing out of city or town ways, respec- 
tively ; and application for a jury ma}^ be made at any 
time within three years after said description and statement 
shall be recorded as above provided. If the damages so 
awarded shall exceed the amount which the city or town 
may have tendered him as compensation before the filing 
of his application for a jury, the owner shall recover his 
costs in the proceedings for such assessment ; otherwise 
the city or town shall recover costs. 

19. Any parcel of land, taken under authority of this 
act, shall revert to the owner, or his heirs or assigns, un- 
less a city or town hall shall be erected thereon, or unless 
the same shall be enclosed and devoted to the enlargement 
of an existing city or town hall lot, within three years 



GENERAL POWERS AND DUTIES OF TOWNS. 7 

after the recording of the description and statement above 
provided. 1 

20. Cities and towns may construct for their own use 
lines of electric telegraph upon and along the highways 
and public roads within their respective limits, subject to 
the provisions of chapter sixty-four of the General Stat- 
utes, as far as the same are applicable. 

21. The board of aldermen of cities and the selectmen 
of towns may authorize any person, upon such terms and 
conditions as the}' may prescribe, and subject to the pro- 
visions of chapter sixty-four of the General Statutes, as 
far as applicable, to construct for private use a line of 
electric telegraph upon and along the highways and public 
roads of the cit} T or town. After the erection of such line, 
the posts and structures thereof within the location of such 
highways and roads shall become the property of the city 
or town, and shall be subject to the regulation and control 
of the board of aldermen or selectmen, who may at any 
time require alterations in the location or erection of such 
posts and structures to be made by the parties using the 
same, and may order the removal thereof, having first 
given such parties notice and an opportunity to he heard. 
r J ne city or town may. at any time, attach wires lor its 
own use to such posts and structures, and the board of 
aldermen or selectmen may permit other persons to attach 
wires for their private use thereto or to posts and structures 
established by the city or town, and may prescribe such 
terms and conditions therefor as they shall deem reason- 
able. 

22. Whoever unlawfully and intentionally injures, mo- 
lests, or destroys any wires, posts, structures, or fixtures of 
any line of electric telegraph, established or constructed 
under authority of this act, shall be punished by a fine not 
exceeding five hundred dollars, or by imprisonment not 
exceeding two years, or b} r both said penalties. 2 

23. When a town votes to raise by taxation or pledge 

1 Stats. 1809, ch. 411, §§ 1, 2, 3. See chapter concerning Telegraph 

2 Stats. 1869, ch. 457, '§§ 1, 2, 3. Companies. 



8 TOWN AND PARISH OFFICER. 

of its credit, or to pay from its treasury, any money, for 
a purpose other than those for which it has the legal right 
and power, the supreme judicial court may upon the suit 
or petition of not less than ten taxable inhabitants thereof, 
briefly setting forth the cause of complaint, hear and deter- 
mine the same in equny. Any justice of said court may 
in term time or vacation issue injunctions and make such 
orders and decrees as may be necessaiy or proper to re- 
strain or prevent any violation or abuse of such legal right 
and power, until the final determination of the cause by 
said court. 1 

24. Each town and city may establish and maintain a 
public library therein, with or without branches, for the 
use of the inhabitants thereof, and provide suitable rooms 
therefor, under such regulations for its government as may 
from time to time be prescribed by the inhabitants of the 
town, or the city council. 2 

25. Any town may, at a legal meeting, grant and vote 
money for the establishment, maintenance, or increase of 
a public library therein, and for erecting or providing suit- 
able buildings or rooms therefor ; and may receive, hold, 
and manage any devise, bequest, or donation for the estab- 
lishment, increase, or maintenance of any such library. 8 

The selectmen of the several towns in this commonwealth, in 
which may now or hereafter be public libraries, owned and main- 
tained by said towns, are authorized to place in the public libraries, 
for the use of the inhabitants, such books, reports, and laws, as have 
been or may be received from the commonwealth. 4 Any town may 
appropriate and pay such sum annually as it may see fit, toward de- 
fraying the expenses of maintaining any library within such city or 
town to which the inhabitants are allowed free access for the purpose 
of using the same on the premises. 5 Whoever wilfully and maliciously 
or wantonly and without cause writes upon, injures, defaces, tears or 
destroys any book, plate, picture, engraving or statue belonging to 
any law, town, city or other public library, shall be punished by a 

1 Gen. Stats, ch. 18, § 79. subject, it is possible that the repeal 

2 Gen. Stats, ch. 33, § 8. of section 8, of chapter 33, was omit- 

3 Stats. 1866, ch. 222, § 1. Sec- ted by mistake. 

tion 2 of this chapter repeals section 4 Stats. 1871, ch. 26. 

9 of chapter 33 of Gen. Stats. As 5 Stats. 1873, ch. 306. 
this section seems to cover the whole 



GENERAL POWEBS AND DUTIES OF TOWNS. 9 

fine of not loss than five dollars nor more than fifty dollars, or by 
imprisonment in the jail not exceeding six months for every 
such offence. 1 So long as any corporation formed under chap- 
ter 217 of the Acts of 1872 shall allow the inhabitants of the city or 
town wherein the same is located free access to and use of its library, 
such city or town may annually appropriate and pay to the said 
corporation established therein money to aid in supporting its library. 2 

2G. They (towns) may make such necessary orders and 
by-laws, not repugnant to the laws of the state, for direct- 
ing and managing the prudential affairs, preserving the 
peace and good order, and maintaining the internal police 
thereof, as they may judge most conducive to the welfare 
of the town ; and may affix penalties for breaches of such 
orders and by-laws not exceeding twenty dollars for one 
offence. 1 

27. The term "by-law" has a peculiar and limited signification, 
being used to designate the orders and regulations which a corpora- 
tion, as our of its Legal incidents, has power to make, ami which is 
usually exercised to regulate its own anion and concerns, ami the 
rights and duties of its members amongst themselves. 4 By-laws must 
be reasonable, and it is for the court to decide whether the/ are 
unreasonable or not. If unreasonable, they are void. If necessary 
for the good government of Bociety, tiny arc good* 9 "Prudentia 
esms " of a town embrace that large class of miscellaneous subjects 
affecting the accommodation and convenience of the inhabitants, 
which have been placed under the municipal jurisdiction of towns 
by statutes or by usage. Such as public hay-scales, burying-grounds, 
wells, and reservoirs, one or more public clocks for the common regu- 
lation of time, in all large towns and populous villages. 6 

28. But the usage must be what the law terms a good usage. "An 

unlawful expenditure of the money of a town cannot be rendered valid 
by usage, however Long continued. A casual or occasional exercise 
of a power by one or a few towns will not constitute a usage. It 
must not only be general, reasonable, and of long continuance, but, 
what is more important, it must also be a custom necessary to the 
exercise of some corporate power or the enjoyment of some corporate 
right, or which contributes essentially to the necessities and conven- 
ience of the inhabitants." 7 

1 Stats. 1872, ch. 42. Pick. 472; Vandine's Case, 6 Pick. 

2 Stats. 1872, ch. 217. 191 ; City of Boston v. Shaw, 1 Met. 

3 Gen. Stats, ch. 18, § 11. 130. 

4 Shaw, C. J., Commonwealth v. 6 Willard v. Newburyport, 12 
Turner, 1 Cash. 496. Pick. 231. 

6 Commonwealth v. Worcester, 3 7 Hood v. Lynn, 1 Allen, 106. 



10 TOWN AND PARISH OFFICER. 

29. Cities and towns may make by-laws to prevent the 
falling, and to provide for the removal of snow and ice 
from the roofs of buildings, in such portions of their limits, 
and to such extent, as they may deem expedient, and may 
annex penalties not exceeding twenty dollars, for any viola- 
tion of such b} r -laws by the owner of any such building, or 
his agent having the care thereof. 1 Cities and towns may 
make ordinances and by-laws, with appropriate penalties 
for the violation thereof, requiring owners of buildings 
near the line of streets and public ways to erect barriers or 
take other suitable measures to prevent the falling of snow 
and ice from such buildings upon persons travelling on 
such streets and ways, and to protect such persons from 
any other dangers incident to the maintenance, occupation, 
or use of such buildings. 2 

30. Towns which have adopted or shall adopt the provi- 
sions of sections seven and eight of chapter forty-five of 
the General Statutes may, at their annual town meetings, 
establish by-laws to provide for the removal of snow and 
ice, to such extent as they may deem expedient, from side- 
walks which have been or shall be established, construct- 
ed, or graded, in accordance with the provisions of said 
sections. 

31. Said by-laws shall determine the time and manner 
of such removal, and annex penalties, not exceeding ten 
dollars, for each violation of their provisions by any owner 
or tenant of the estate abutting upon the sidewalk from 
which the snow and ice are required to be removed ; and 
such penalties shall be recovered in an action of tort, in 
the name and to the use of the town. 3 

32. Said sections of chapter forty-five are as follows : — 
§ 7. In cities in which the city council, and in towns in 

which the inhabitants, have adopted the provisions of this 
and the following section, the ma}^or and aldermen or se- 
lectmen may establish and grade sidewalks in such streets 
as in their judgment the public convenience may require, 
and may assess the abutters on such sidewalks one half the 

i Stats. 1863, ch. 86. 2 Stats. 1878, ch. 91. 3 stats. 1863, ch. 114. 



GENERAL POWERS AND DUTIES OF TOWNS. 11 

expense of the same, the residue being paid by such city 
or town. All assessments so made shall be a lien upon 
the abutting lands in the same manner as taxes are a lien 
upon real estate. 

§ 8. No sidewalk constructed or graded in a city or town 
shall be dug up or obstructed in any part thereof, without 
the consent of the mayor or aldermen of the cit}', or of the 
selectmen of the town, in which such sidewalk is estab- 
lished. 

33. Cities and towns may, by ordinance or by-law, pro- 
hibit persons from ridiug or driving horses or other beasts 
of burthen, carriage, or draught, in or upon any of the 
streets or wa} T s for public travel therein, at a rate of speed 
which the} T deem inconsistent with the public safety or 
convenience, under such penalties as they are authorized to 
impose for breaches of other ordinances or by-laws. 

34. A person violating a provision of such ordinance or 
by-law may be apprehended by a sheriff, deputy sheriff, 
constable, police officer, or watchman, without a written 
warrant, and kept in custody in a convenient place, not 
more than twenty- four hours, Sunday excepted ; at or be- 
fore the expiration of which time he shall be brought before 
a justice of the peace or police court, and proceeded against 
according to law. 1 

35. Any city or town shall have power to regulate, by 
suitable ordinances or by-laws, to be made in the manner 
now provided by law, the passage and driving of sheep, 
swine, and neat cattle through and over the public streets, 
wa}'S, causeways and bridges within the limits of such city 
or town, and to annex penalties not exceeding fifty dollars 
for each violation thereof. 2 

36. Any city or town in which a draw for the passage 
of vessels through a bridge used as a public highway and 
maintained at the public expense is situated, shall have 

1 Stats. 1865, ch. 31. For the from school, see chapter on that sub- 
authority of towns to make by-laws, ject. 
&c, in reference to truant children, 2 Stats. 1876, ch. 20. 
neglected children, and absentees 



12 TOWN AND PARISH OFFICER. 

power to make ordinances or by-laws regulating the pas- 
sage of vessels through such draw, and to annex penalties 
not exceeding fifty dollars for each violation thereof: pro- 
vided, such ordinances or by-laws shall be approved by the 
harbor commissioners. 

37. In all cases where such ordinances or by-laws are 
made applicable to any draw, it shall be the duty of such city 
or town to place said draw under the direction of a suitable 
person or persons, as draw- tender or superintendent, and 
to post in some conspicuous place near by a written or 
printed copy of such ordinances or by-laws. 

38. Such draw-tender or superintendent shall have full 
control of the passing of all vessels through the draw, shall 
furnish all facilities for such passing, shall allow no deten- 
tion, having due regard for the public travel, and shall en- 
force the ordinances or by-laws aforesaid. 

39. If any vessel shall, through the negligence of the mas- 
ter or others having charge of her, or their neglect to com- 
ply with such ordinances or by-laws, or disregard of the 
directions of such draw-tender or superintendent, injure any 
bridge, draw, or pier or wharf connected therewith, the 
owner or owners thereof shall likewise be liable to pay for 
such damage, to be recovered by such city or town in an 
action of tort. 

40. Such draw-tender or superintendent shall likewise 
have authority to remove any vessel obstructing such draw, 
or interfering with the passage of other vessels through the 
same, or made fast to such draw or bridge or pier or wharf 
connected with the same, without the consent of such draw- 
tender or superintendQnt, or wilfully violating any ordi- 
nance or by-law, and the expense of such removal shall 
be recovered in the manner set forth in the foregoing 
section. 1 

41 . Any city or town may regulate by suitable ordinances 
or by-laws, to be made in the manner now provided by 
law, with penalties not exceeding fifty dollars for each 

l Stats. 1876, ch. 122. 



GENERAL POWERS AND DUTIES OF TOWNS. 13 

violation thereof, the use of reservoirs and land and drive- 
ways appurtenant thereto, forming a part of its system of 
water supply within its limits. 1 

No person, except on military duty in the public service of the 
United States or of this commonwealth, shall keep, have or possess, 
in any building, place, vehicle, ship or other vessel, within one rod of 
a dwelling-house in any city or town, any explosive compound in 
quantity exceeding one fifth of a pound in any way or manner pro- 
hibited by this act or by any ordinance or by-law, which may be 
made in accordance with section two of this act. Section two is as 
follows : — 

" The city council of any city may make ordinances necessary for 
the protection of life and property, in regard to the keeping, storage, 
use, manufacture, or Bale of explosive compounds, and may regulate 
the transportation thereof through the streets or highways of sueh 
city, and affix penalties, not exceeding fifty dollars tor each offence. 

Towns may make like by-laws for the same purpose, to be approved 
in the manner prescribed in section fourteen of chapter eighteen of 
the General Statutes, and affii penalties not exceeding twenty dollars 
for each offence : provided, Buch by-laws and ordinances shall not pro- 
hibit the transportation of explosive compounds from one place to 
another, nor in- otherwise repugnant to the provisions of this act and 
the rules made thereunder by the railroad commission* 

The selectmen of any town may License, upon such terms as may 
be prescribed in the ordinance- or by-laws mentioned in section two, 

the keeping. Btorage, transportation, use, manufacture, or Bale of ex- 
plosive compound-, within the limits of the city or town. 

Any person duly authorized by the by-laws of any town may enter 
the building or premises of any person or persons licensed to sell ex- 
plosive compounds, to examine and ascertain if the laws, rules, ami 
regulations relating thereto are strictly observed; and on an alarm of 
fire may cause the explosive compounds there deposited to be removed 
or destroyed, as the case may require. 

By the words " explosive compound " shall be understood either 
gun-cotton, nitroglycerine, or any compound of the same; any ful- 
minate, or generally any substance intended to be used by exploding 
or igniting the same, to produce a force to propel missiles or to rend 
apart substances, except gunpowder. 2 

42. All penalties for breaches of the orders and by-laws 
of a town may be recovered on complaint before a police 
court or a justice of the peace, and shall inure to the town, 
or to such uses as the town may direct. 8 

1 Stats. 187G, ch. 139. 3 Gen. Stats, ch. 18, § 12. 

2 Stats. 1877, ch. 210, §§1,2, 3, 9, 12. 



14 TOWN AND PARISH OFFICER. 

43. When a town in a by-law imposes a duty and affixes 
a penalty for refusal or neglect to perform the same, they 
may therein provide that in case of such refusal or neglect 
the duty may be performed by officers therein named, at 
the expense of the party liable to perform the same, and 
such expense may be recovered of him by the town in an 
action of contract in the name of the treasurer, but the 
amount recovered shall not exceed the penalty fixed in the 
by-law. 

44. Before any by-law takes effect, it shall be approved 
by the superior court, or in vacation by a justice thereof, 
and shall with such approval be entered and recorded in 
the office of the clerk of the courts in the county where the 
town is situated, or in the county of Suffolk in the office of 
the clerk of the superior court for civil business. 

45. Such by : laws shall be binding upon all persons 
coming within the limits of the town, as well as upon the 
inhabitants thereof. 

46. All by-laws made by a town shall be published in 
one or more newspapers printed in the county where the 
town is situated. 

47. Each town shall provide at its own expense some 
suitable cabinet or bookcase for the safe preservation of such 
books, reports, and laws, as they receive from the common- 
wealth, and for every month's neglect shall forfeit ten dollars 
to the use of the commonwealth. 1 

48. One copy or more of the annual report, or of any 
special report relating to income, expenditures, or other 
municipal affairs of any city or town, shall be returned by 
the clerk thereof, on or before the last day of April in each 
3^ear to the state librarian, to be deposited and preserved 
in the state library. 

49. If any city or town shall neglect or refuse to make 
the return required in the preceding section, such city or 
town shall thereby forfeit its share of the publications here- 
after to be distributed by authority of the commonwealth, 

l Gen. Stats, ch. 18, §§ 13, 14, 15, 16, 17. 



GENERAL POWERS AND DUTIES OF TOWNS. 15 

and said publications shall be withheld until the provisions 
of this act are complied with. 1 

50. The secretary shall furnish annually a complete set 
of the public series (of documents) in a bound volume to 
each city and town in the commonwealth, to be preserved 
in some public place therein, which volume shall have a 
title-page bearing the date of the year, and a brief index 
to the title of the several documents. 2 

Also one copy of a volume containing all the acts and resolves 
passed during the preceding session of the legislature, with the 
governor's address and messages, the constitution of the common- 
wealth, a list of names changed and returned during the preceding 
year by the probate courts, and a list of the officers of the civil 
government, with an index. 3 

And also immediately after the close of the session of the general 
court to each town its proportionate part, according to the census, 
of thirty-live thousand copies of the general laws enacted at said 



Limits of Municipal Indebtedness. 

51. The assessors of cities and towns shall each year 
assess taxes to an amount not less than the aggregate of all 
sums appropriated, granted, or lawfully expended by their 
respective cities or towns since the last preceding annual 
assessment and not provided for therein ; and of all sums 
which arc required by law to be raised by taxation by the 
said cities or towns during said year ; and of all sums 
which are necessaiy to satisfy final judgments recovered 
against the said cities or towns ; but such assessments shall 
not include sums for the payment of which cities or 
towns have voted to contract debts according to the pro- 
visions of the third section of this act ; and the assessors 
may deduct from the amount required to be assessed the 
amount of all the estimated receipts of their respective 
cities or towns (except from loans or taxes) which are 
lawfully applicable to the payment of the expenditure of 

i Stats. 18GG, ch. 195, §§ 1, 2. 3 Gen. Stats, ch. 3, §§ 1-2. 

2 Gen. Stats, ch. 4, § 8. * Stats. 1866, ch. 65. 



16 TOWN AND PARISH OFFICER. 

the year, but such deduction shall not exceed the amount 
of such receipts during the preceding year ; and such 
assessments shall be made in the manner provided by law 
for the assessment of taxes ; and any assessor wilfully 
neglecting to make an assessment required by this act shall 
be subject to the penalties provided by law for neglecting 
to assess taxes. 

52. No debts shall hereafter be incurred by any city or 
town except debts for temporary loans in anticipation of 
the taxes of the year in which such debts are incurred, and 
of the year next ensuing and expressly made payable 
therefrom by vote of the said city or town ; and except as 
hereinafter provided. 

53. Debts, other than those authorized by the second 
section of this act, shall hereafter be incurred by a town 
only by a vote of two thirds of the legal voters present 
and voting at a legal meeting, and by a city only by a 
vote of two thirds of all the members of each branch of 
the city council, taken by yeas and nays, and, in any city 
where the mayor has the veto power, approved by the 
mayor ; or, if he disapprove said vote, by another like 
vote taken after notice of such disapproval, which notice 
shall be given within ten days from the time in which the 
vote of the city council shall have been laid before the 
ma} T or ; and if the mayor shall fail to give such notice to 
the branch of the city council in which said vote was first 
taken, he shall be deemed to have approved said vote of 
the city council. 

54. Any debt contracted by a city or town, as provided 
by the third section of this act, shall be payable within a 
period not exceeding ten years from the time of contract- 
ing the same, and said city or town shall annually raise by 
taxation an amount sufficient to pay the interest thereon as 
it accrues, and shall also annually raise by taxation a sum 
not less than eight per centum of the principal thereof, 
until a sum is raised sufficient with its accumulations to 
extinguish the debt at maturity, which sum shall be set 
apart for that purpose and shall be used for no other pur- 



GENERAL POWERS AND DUTIES OF TOWNS. 17 

pose ; and any balance required to extinguish said debt 
shall be raised by taxation at the annual assessment next 
preceding its maturity : provided, however, that debts 
incurred in constructing general sewers may be made pay- 
able at a period not exceeding twenty years from the time 
of contracting the same, and that debts incurred in supply- 
ing the inhabitants with pure water may be made payable 
at a period not exceeding thirty years from the time of 
contracting the same ; and provided, also, that when the 
debt is, under the authority of this act, made payable at 
a period exceeding ten years from the time of contracting 
the same, said town or city shall, and when it is made 
payable at a period, not exceeding ten years, said town or 
city may, besides paying the interest, as it accrues, from 
taxes assessed for the purpose, establish, at the time of 
contracting the debt, a sinking fund, and contribute 
thereto from year to year an amount raised annually by 
taxation, sufficient, with its accumulations, to extinguish 
the debt at maturity ; and said sinking fund shall remain 
sacred and inviolate and pledged to the payment and 
redemption of said debt, and shall be used for no other 
purpose. 

55. Any town establishing a sinking fund under the 
provisions of this act shall, at the time of establishing the 
same, elect, in the manner in which selectmen are by law 
required to be elected, three or six suitable persons as 
commissioners of its sinking funds, and any city establish- 
ing such a fund shall elect such commissioners by a con- 
current vote of both branches of the city council. One third 
of the number shall be elected for one, two, and three years 
respectively. And annually thereafter there shall be 
elected for a term of three years a number equal to the 
number whose term of service then expires. Vacancies 
occurring in the board of commissioners shall, in towns, 
be filled by the remaining member or members and the 
selectmen, by a majority of ballots of the officers so en- 
titled to vote, at a meeting called for the purpose by the 
selectmen ; and in cities such vacancies shall be filled by 



18 TOWN AND PARISH OFFICER. 

the city council in the manner above provided for the 
election of the commissioners. The remaining member or 
members shall, in case of a vacancy, exercise the powers 
of the board till the vacancy is filled. The city or town 
treasurer shall not be eligible as a commissioner of sinking 
funds ; and the acceptance of the office of treasurer by a 
commissioner already elected shall work a resignation of 
the office of commissioner. But the foregoing provisions 
as to the mode of electing commissioners and filling 
vacancies shall not apply to boards of sinking fund com- 
missioners already established. 

The commissioners shall choose a treasurer, who may be 
the city or town treasurer ; and if the city or town treasurer 
shall be chosen, his bond shall apply to and include duties 
performed under this act. If any other person shall be 
chosen as treasurer, he shall give a bond, with sureties, to 
the satisfaction of the commissioners, for the proper dis- 
charge of the duties of his office. 

The commissioners shall receive all sums contributed to 
a sinking fund, and invest and reinvest the same, and the 
income thereof as it shall accrue, in the name of the board, 
in the particular scrip, notes, or bonds for the redemption 
of which such sinking fund was established, or in other bonds 
of said town and city which are secured by sinking funds, 
or in the securities in which by law the funds of savings 
banks may be invested, except personal securities, although 
guaranteed by sureties ; but no portion of the same shall 
be loaned to the city or town except as herein provided ; 
and the commissioners may sell and reinvest such securities 
when required in their judgment for the good management 
of the fund. They shall keep a record of their proceed- 
ings ; and shall annually, at the time when other municipal 
officers are required to make an annual report, make a 
written report to the city or town of the amount and con- 
dition of said funds and the income thereof, for the then 
preceding financial year. The record, and the securities 
belonging to said funds, shall at all times be open to the 
inspection of the selectmen, mayor, and aldermen, or any 



GENERAL POWERS AND DUTIES OF TOWNS. 19 

committee of said city or town duly authorized for the 
purpose. The necessary expenses of the board shall be 
paid by said city or town ; and the treasurer and secretary 
thereof shall receive such compensation as shall be fixed 
by the city or town, but no commissioner shall receive 
compensation for his services. 

When any securities issued by the city or town become 
a part of a sinking fund, the commissioners shall cause to 
be stamped or written on the face thereof a notice that they 
are a part of such sinking fund, and are not negotiable ; and 
the coupons thereof, as the}' become due and are paid, shall 
be cancelled. 

56. No city or town, except as hereinafter provided, 
shall become indebted to an amount (including existing 
indebtedness) exceeding in the aggregate three per centum 
on the valuation of the taxable property therein, to be 
ascertained by the last preceding city or town valuation for 
the assessment of taxes. In determining the amount of 
indebtedness under this act, the amount of the sinking 
funds shall be deducted from the gross indebtedness. 

57. Cities or towns indebted when this act takes effect, 
to an amount not less than two per centum on their valua- 
tion as aforesaid, may increase such indebtedness to the 
extent of an additional one per centum on their valuation, 
but no more ; and, when such indebtedness of any city or 
town exceeds five per centum on its valuation as aforesaid, 
such city or town shall raise annually by taxation a sum 
sufficient to pay the interest on its whole indebtedness, and 
to make the necessary contributions to a sinking fund 
which shall be established for the redemption of the same 
at a period not exceeding thirty years from the time this 
act takes effect in the manner provided in the fourth and 
fifth sections of this act ; and any city or town indebted 
when this act takes effect to an amount less than five per 
centum, and more than one per centum on its valuation 
as aforesaid, shall make like provision for the payment of 
the interest on its whole indebtedness, and for the extinc- 
tion of such indebtedness within a period not exceeding 



20 TOWN AND PARISH OFFICER. 

twenty years from the time this act takes effect, but it 
shall be sufficient to make such provision for the extinction 
of indebtedness contracted in supplying the inhabitants 
with pure water within a period not exceeding thirty years 
from the time this act takes effect, and to make like provi- 
sion for the extinguishment of any existing funded debts, 
when the same mature. 

58. Nothing contained in this act shall be construed as 
prohibiting the inhabitants of towns, or city councils, from 
paying or providing for the payment of any municipal 
debts at earlier periods than is herein required, or from 
renewing the same in securities pa}^able within the period 
required for the final payment of the debt, or from adding 
to any sinking funds, or funds for the extinguishment of 
any debt, the excess of municipal appropriations over the 
amounts required for the purpose thereof, or any sums 
derived from taxation or special assessments, or other 
sources, which are not required by law to be otherwise 
expended ; and such additions may be made for the pur- 
pose of reducing the entire debt for the redemption of 
which the sinking fund was established, or of reducing the 
amount to be raised by taxation for such fund. 

59. No part of the sinking funds of the commonwealth 
shall hereafter, except for the renewal of existing loans, be 
loaned to any city or town the indebtedness of which shall 
exceed five per centum of its valuation as aforesaid, or 
which shall not comply with the provisions of this act ; 
but the certificate of the treasurer of any city or town as 
to the percentage of its indebtedness, and as to such com- 
pliance, shall be deemed satisfactory evidence thereof, for 
the justification of the treasurer of the commonwealth in 
making any such loan, unless he has reasonable cause to 
suppose that the statements of such certificate are not 
true. 

60. The restrictions of this act shall not exempt any 
city or town from its liability to pay debts contracted for 
purposes for which cities or towns may lawfully expend 
money ; and the limits of municipal indebtedness pre- 



GENERAL POWERS AND DUTIES OF TOWNS. 21 

scribed by this act shall be exclusive of debts created for 
supplying the inhabitants with pure water, and its provi- 
sions shall not apply to subscriptions lawfully made to the 
capital stock or securities of railroad corporations. 

61. The supreme judicial court may, upon the suit or 
petition of the attornej'-general, or of one or more taxable 
inhabitants of any city or town, or of any creditor to whom 
the said cit} T or town appears to said court indebted in an 
amount not less than one thousand dollars, compel the 
said city or town and its assessors, collectors, treasurers, 
commissioners of sinking funds, and other proper officers, 
to enforce the provisions of this act by mandamus or other 
appropriate remedy, and hear and determine any cause of 
complaint in equity, where such remedy is more appropri- 
ate ; and any justice of said court may in term time or 
vacation issue injunctions and make such orders and decrees 
as may be necessary or proper to enforce the provisions 
of this act, and to restrain or prevent any violation 
thereof. 1 

4. Town Subscriptions. 

62. Any town and any city r having by the census of the 
year eighteen hundred and seventy less than thirty thousand 
inhabitants, within which the road of any railroad corpo- 
ration hereafter organized, or the roads of any existing 
railroad corporation not now constructed shall be located 
or terminate, may subscribe for and hold shares of the 
capital stock or the securities of such railroad corporations, 
or either of them, to an amount not exceeding, for the 
aggregate in all such corporations, two per centum of 
the valuation of such town or city for the year in which 
the subscription is made ; and towns having a valuation 
not exceeding three millions of dollars may subscribe for 
and hold the securities of such corporation or either of 
them to an amount not exceeding three per centum of the 
valuation of such town in the year in which the subscrip- 
tion is made, in addition to the two per centum herein 

1 Stats. 1875, ch. 209. 



22 TOWN AND PARISH OFFICER. 

before provided : provided, that two-thirds of the legal 
voters, present and voting by ballot and using the check- 
list, at legal meetings called for the purpose in such town 
or city, and held in like manner as the meetings for the 
choice of municipal officers are now held by law in such 
town or city respectively, shall vote to subscribe for such 
shares or securities in such corporation. 

63. Any town or city may vote, in accordance with the 
provisions of the preceding section, to become an asso- 
ciate for the formation of a railroad corporation in com- 
pliance with section nineteen of this act, and by virtue of 
such vote, may become an associate in such corporation, 
with all the powers and privileges enjoyed by any indi- 
vidual associate. 

64. The form in which the matters provided for in the 
two preceding sections shall be submitted to the voters of 
any town or city, shall be determined, in cities by a con- 
current vote of both branches of the city council, and in 
towns by the selectmen ; and whenever a town or city has 
voted to subscribe to the stock or securities of a railroad 
corporation, or to become an associate for the formation 
of such corporation, the mayor and aldermen, in cities, 
and the selectmen, in towns, shall select some person who 
shall be authorized, in behalf of said city or town, to 
execute its vote. 

65. If any subscription, authorized under section thirty- 
five (section thirty-five of this chapter) by vote of any 
town or city, is not actually made, by the persons author- 
ized, within twelve months from said vote, such vote shall 
be void ; and unless, within the said period part of said 
subscription shall have actually been paid, or unless some 
proceeding is commenced, by such corporation to enforce 
payment thereof, and unless at least twenty per centum 
of the capital stock of the corporation to which the sub- 
scription is made shall have been actually paid in, in cash, 
and at least ten per centum of such capital stock is actually 
expended by such corporation in the construction of its 
road, said subscription shall be void ; but nothing in this 



GENERAL POWERS AND DUTIES OF TOWNS. 23 

act contained shall invalidate the action of any town which 
may have already subscribed for shares or securities of any 
railroad corporation before the expiration of the time lim- 
ited by section thirty, or by the charter of such corporation, 
as now existing, for the construction of its railroad. 

66. Towns and cities subscribing for stock or securities 
under this act, may raise money to pa}' for the same by 
tax or loan, and may issue their notes or bonds for such 
loan ; the}' may hold and dispose of such stock and securi- 
ties in like manner as other town property, and the select- 
men of towns, and such persons as may be authorized by 
vote of the city council of cities, may at all meetings of 
the corporations in which the stock or securities are held, 
represent their respective municipalities and vote upon 
each and every share of stock owned by them respec- 
tively. 1 

67. No town or city shall hereafter increase its indebted- 
ness for the purpose of subscribing to the stock or securi- 
ties of railroad corporations, to an amount which, with the 
existing net indebtedness of such town or city, incurred 
for any purpose, shall exceed the limit of three per centum 
of the valuation of the taxable property therein, to be 
ascertained by the last preceding town or city valuation 
for the assessment of taxes ; but the limitation of this act 
shall not apply to temporary loans in anticipation of the 
taxes of the year in which such debts are incurred, and 
the year next ensuing, and expressly made payable there- 
from by vote of the said town or city. 2 

68. Any town or city owing debts incurred to obtain 
funds for one or more subscriptions for the capital stock 
and securities of any railroad corporation may, for the 
purpose of paying the same, establish a sinking fund, 
which shall be subject to the provisions of section five of 
chapter two hundred and nine of the acts of the year 
eighteen hundred and seventy- five (section forty-eight of 
this chapter) and may contribute thereto any sums which 
it may receive from the sales of such stock or securities, 

1 Stats. 1874, ch. 372, §§ 35-39. 2 Stats. 1876, ch. 175. 



24 TOWN AND PARISH OFFICER. 

or from any dividends or interest upon the same, or from 
taxes which it may vote to raise for the payment of such 
indebtedness ; and such town or city may transfer the cus- 
tody and management of such stock and securities to the 
commissioners of the sinking fund provided for by this act. 

69. Any town or city having a sinking fund for the pay- 
ment of its general indebtedness, under the provisions of 
said chapter two hundred and nine, 1 may, by a vote of the 
inhabitants of said town, or of the city council of said city, 
provide that the commissioners of sinking funds elected 
under said act shall be the commissioners of the sinking 
fund under this act. 

70. Any town or city owing debts described in section 
one of this act (section fifty- six of this chapter) shall 
annually raise by taxation a sum sufficient to pay the 
interest on the same, or, if there is any income derived 
from the capital stock or securities owned by such town 
or city as aforesaid, a sum sufficient to pay the excess- 
of such interest payable by said town or city over such 
income ; and the assessors thereof shall assess such sum 
in the manner provided by section one of said chapter 
two hundred and nine, 1 and shall also assess, in the 
manner aforesaid, such further sum as the inhabitants 
of said town or city council of said city may vote to 
raise by taxation for the purpose of paying the principal 
of the indebtedness incurred by such subscriptions ; and 
the remedies provided by sections one and eleven of said 
chapter shall be applicable to proceedings under this act 
(this and two preceding sections) . 2 

71. Every county, city, and town in this commonwealth, 
and every corporation incorporated or organized, or here- 
after incorporated or organized, by or under the laws or 
authority of this commonwealth, which has issued or shall 
hereafter issue any bond, promissory note, or certificate of 
indebtedness payable to bearer, and either with or without 
coupons or interest warrants attached, may, at the request 

1 Chapter 209 of the Stats, of 1875 is sections 44 to 54 of this chapter in- 
clusive. 2 stats. 1876, ch. 133. 



GENERAL POWERS AND DUTIES OF TOWNS. 25 

of the owner or holder, at airy time while more than one 
year remains before the principal of such bond, promissory 
note, or certificate of indebtedness shall be due and pay- 
able, issue in exchange for the same a registered bond, 
promissory note, or certificate of indebtedness of the same 
effect, except that it shall be payable to the holder by 
name, and not to bearer. 

72. An}' person to whom any registered bond, promis- 
sory note, or certificate of indebtedness shall be transferred 
by assignment acknowledged before any officer authorized 
to take acknowledgments of deeds conveying real estate in 
this commonwealth, and any trustee, executor, adminis- 
trator, assignee in bankruptcy or insolvency, or any other 
person, not the person named therein, in whom the title to 
any registered bond, promissory note, or certificate of in- 
debtedness shall be vested by operation of law, shall be 
entitled to a new registered bond, promissory note, or cer- 
tificate of indebtedness of the same effect, except that it 
shall be payable to him by name, in exchange for the bond, 
promissory note, or certificate of indebtedness so trans- 
ferred or the title to which is so vested in him. 

73. Every county, city, and town in this commonwealth, 
and every corporation incorporated or organized b} r or 
under the laws or authority of this commonwealth, shall 
keep a register showing the number, date, amount, and 
rate of interest of every registered bond, promissoiy note, 
or certificate of indebtedness issued by it, and when the 
same is payable and the name of the person to whom the 
same is payable, and what bonds, promissory notes, or cer- 
tificates of indebtedness, if any, were received in exchange 
therefor : and shall be entitled to a fee of fifty cents for 
every registered bond, promissory note, or certificate of 
indebtedness issued in exchange for any other bond, prom- 
issory note, or certificate of indebtedness. 

74. Any city or town may, by the exercise of any rights 
reserved b} T the terms of any of its securities heretofore 
created or hereafter to be created, recall and pay said 
securities, or any portion thereof, and issue other securi- 



26 TOWN AND PARISH OFFICER. 

ties in place of those so recalled and paid ; said new secu- 
rities to be payable at periods within the maturity of those 
originally issued. But such new securities shall, for debts 
heretofore created, be made payable at a period not more 
remote than thirty years from the time of the taking effect 
of chapter two hundred and nine of the acts of the year 
eighteen hundred and seventy-five, and shall, for debts 
hereafter created, be made payable at a period not more 
remote than thirty years from the time of contracting the 
same. 1 

75. Any city or town may raise money by taxation and 
appropriate the same in order to purchase or lease suitable 
lands and erect any buildings suitable for public baths and 
wash-houses, either with or without open drying grounds, 
and ma} T make open bathing places, and convert any build- 
ings into public baths and wash-houses, and may from time 
to time alter, enlarge, repair, and improve the same, and 
fit up and furnish the same with all requisite furniture, 
fittings, and conveniences, and may raise and appropriate 
money therefor. 

76. Any city or town may establish such rates for the 
use of said baths and wash-houses, and appoint such 
officers as are deemed proper to carry the provisions of 
this act into effect, and may make such by-laws or ordi- 
nances for their government as they from time to time 
deem necessary, and may authorize them to make such 
rules and regulations for the management of the baths and 
wash-houses as may seem to them expedient : provided, 
that such b} T -laws or ordinances, rules or regulations shall 
be subject to alteration or repeal at any time. 

77. This act (this and two preceding sections) shall 
not take effect in any city or town until it has been ac- 
cepted by the council of such city, by a two thirds vote, or 
by two thirds of the legal voters of such town present 
and voting at any annual meeting. 2 

78. Any city or town may by ordinance or by law regu- 
late the transportation of the offal of slaughtered cattle, 

i Stats. 1876, ch. 238. 2 Sta t s . 1874, ch. 214. 



GENERAL POWERS AND DUTIES OF TOWNS. 27 

hogs, sheep, or other animals, over, along, or through any 
of the public streets or highwa} T s in such city or town ; and 
may impose fines for the violation of such ordinance or 
try-law, not exceeding one hundred dollars for each offence. 1 

79. The board of mayor and aldermen in any city may 
grade and construct sidewalks, and complete any partially 
constructed sidewalk in any street of such chVy, as the public 
convenience may require, with or without edge-stones, as 
said board shall deem expedient, and ma}' cover the same 
with brick, flat stones, concrete, gravel, or other appro- 
priate material, and may assess upon the abutters on such 
sidewalks, in just proportions, not exceeding one half of 
the expense of the same ; but all assessments so made 
shall constitute a lien upon the abutting land, and be col- 
lected in the same manner as taxes on real estate are now 
collected, and such sidewalks, when constructed, with 
edge-stones and covered with brick, flat stones, or concrete, 
shall afterwards be maintained at the expense of such city. 
When any such sidewalk shall be permanently constructed 
with edge-stones, and covered with brick, flat stones, or 
concrete, as aforesaid, there shall be deducted from the 
assessment therefor any sum which shall have been pre- 
viously assessed upon the abutting premises, and paid to 
the city for the expense of the construction of the same in 
any other manner than with edge-stones and with brick, 
flat stones, or concrete as aforesaid ; and such deduction 
shall be made pro rata, and in just proportions from the 
assessments upon different abutters, who at the time of 
such assessments are owners of the estate which at the 
time of such former assessments was the estate of the 
abutters who had previously paid such former assess- 
ments. 

80. In estimating the damage sustained by any party 
by the construction of sidewalks as aforesaid, there shall 
be allowed, by way of set-off, the benefit, if any, to the 
property of the party by reason thereof. 2 

81. Chapter three hundred and three of the acts of 

1 Stats. 1874, ch. 225. 2 stats. 1872, ch. 303. 



28 TOWN AND PARISH OFFICER. 

eighteen hundred and seventy-two (two preceding sec- 
tions) is amended so as to provide that no abutter shall 
be assessed for the expense of any sidewalk a sum exceed- 
ing one per cent of the valuation of his estate abutting on 
such sidewalk as fixed by the annual assessment last pre- 
ceding the construction of such sidewalk. 

82. The provisions of chapter three hundred and three 
of the acts of eighteen hundred and seventy- two, as 
amended by the first section of this act, are extended to 
any town accepting the same at an annual meeting ; and 
the authority conferred by said act upon the mayor and 
aldermen of cities is conferred upon the selectmen of such 
town. 

83. The provisions of this act (this and two preceding 
sections) shall not apply to any sidewalk now constructed 
according to the provisions of chapter three hundred and 
three of the acts of eighteen hundred and seventy- two, nor 
to any city unless accepted by the city council thereof. 1 

84. No building exceeding six hundred square feet in 
superficial area upon the ground shall be erected in or 
upon any public common or public park which has been 
dedicated to the use of the public, without leave of the 
legislature previously obtained. 

85. Any violation of this act may be restrained by the 
supreme judicial court or any justice thereof in the manner 
provided in section seventy-nine of chapter eighteen of the 
General Statutes. 2 

For the powers and duties of towns in relation to other subjects, 
see the chapters and sections on these subjects hereafter. 

1 Stats. 1874, ch. 107. 2 Stats. 1877, ch. 223. 



TOWN RECORDS. 29 



CHAPTER II. 

TOWN RECORDS. 

1. All matters of public record in any office shall be en- 
tered or recorded on paper made wholly of linen, of a firm 
texture, well sized, and well finished ; and the clerks and 
registers of said offices shall give a preference to linen paper 
of American or domestic manufacture, if such paper is 
marked in water line with the word " linen," and also with 
the name of the manufacturer. 

2. The county commissioners, city governments, and 
selectmen, of the respective counties, cities, and towns, 
shall have all books of public record or registry belonging 
thereto substantially bound, and other papers and docu- 
ments within their respective departments duly filed and 
arranged conveniently for examination and reference, and 
shall also cause such of said public records as are left in- 
complete hy an} T clerk or register to be made up and com- 
pleted b} r his successor from the files and usual memoranda 
as far as practicable, and certified and preserved in the 
same manner and with the same effect as is provided for 
other cases in sections seven, eight, and ten of this chap- 
ter (being sections six, seven, and nine below). 

3. City governments and selectmen shall provide at the 
expense of their respective cities and towns fire-proof safes 
of ample size for the preservation of books of record or 
registry, and other important documents or papers belong- 
ing thereto ; and the clerk of each city and town shall 
keep all such books, papers, and documents, in the safe so 
provided, at all times, except when they are wanted for 
use. 

4. A city or town may cause to be carefully transcribed 
such of its records as relate to grants of lands, or the 



30 TOWN AND PARISH OFFICER. 

grants or divisions and allotments of land made by the 
original proprietors of the township, or to any easements, 
private rights, or ways, or any records of births and mar- 
riages kept by such city or town, or by any parish within 
the same. 

5. A city or town whose territory in whole or in part has 
been set off from any other city or town may cause to be 
carefully transcribed such records named in the preceding 
section as relate to lands, easements, rights, or ways, situ- 
ated in the territory so set off. 

6. When the records of a county, city, or town, are be- 
coming worn, mutilated, or illegible, the county commis- 
sioners, city government, or selectmen, shall have fair 
legible copies seasonably made ; and when the interests of 
any county, city, or town require, the county commis- 
sioners, mayor and aldermen, selectmen, or overseers of 
the poor, may have copies of any records or parts of 
records, or of any papers or documents, in the legal cus- 
tody of any other count}', city, or town, so made at the 
expense of their respective counties, cities, or towns ; 
which copies shall be certified by the register or clerk of 
the office where they are taken to be true copies of the 
originals, and they shall be preserved in like manner as 
the original records, papers, and documents of the place 
for which they are made. 

7. A transcript made in pursuance of the provisions of 
the preceding sections, and compared and certified under 
oath by the clerk or register having the custody of the 
original to be a true copy, shall have the same force and 
effect when deposited among the records of the place for 
which it is made as if the same were an original record, or 
an original paper, or document, deposited there. 

8. Registers of deeds, registers of courts, and the regis- 
ters and clerks of courts, cities, and towns, shall keep all 
records and documents belonging to their offices in their 
sole custody, and shall in no case, except upon summons 
in due form of law, or when the temporary removal of 
records and documents in their custody is necessary or 



TOWN RECORDS. 81 

convenient for the transaction of the business of the courts 
or the performance of the duties of their respective offices, 
cause or permit any record or document to be removed or 
taken awa}'. 

9. Under the direction of the officers having the custody 
of the county, city, and town records and files, the same 
shall be open for public inspection and examination, and 
any person may take copies thereof. And the several 
clerks and registers shall, on payment of a reasonable fee 
therefor, compare and certify, in the manner herein men- 
tioned, all transcripts properly and correctly made for any 
county, city, or town, in pursuance of the provisions of 
this chapter. 

10. The legal custody of the books of record and other 
documents of the ancient proprietors of townships or of 
common lands, when they have ceased to be a body cor- 
porate, shall, unless they have made other legal disposition 
thereof, be vested in the clerk of the city or town in which 
such lands or the larger portion of them are situated ; who, 
if such records and documents are in the possession of any 
other person, shall demand the same, and may make and 
certify copies thereof in the same manner as the clerk of 
the proprietors might have done. 

When any church or religious society ceases to have a 
legal existence, and the care of its records and registries is 
not otherwise provided for by law, the person having pos- 
session of the same shall deliver them to the clerk of the 
city or town in which such church or society was situated, 
who may certify copies thereof. 

11. Every county, city, and town, for each month it 
neglects or refuses to perform any duty required by this 
chapter, shall forfeit twenty dollars ; a register or clerk 
who neglects or refuses to perform any duty required of 
him shall forfeit for each offence ten dollars ; whoever 
takes and carries away any book of record, paper, or 
written document, belonging to the records or files of any 
county, city, or town, except as is provided in section nine 
(section eight above), or defaces, alters, or mutilates, by 



32 TOWN AND PARISH OFFICER. 

mark, erasure, cutting, or otherwise, any such record, 
paper, or written document, shall forfeit a sum not exceed- 
ing fifty dollars ; and whoever, after demand made by the 
clerk of the city or town entitled by law to have possession 
of the books of record and other documents mentioned in 
sections eleven and twelve (section ten above) , wrongfully 
detains the same, shall forfeit fifty dollars. 1 

i Gen. Stats, ch. 29, §§ 1, 2, 3, 13. 



TOWN MEETINGS. 33 



CHAPTER in. 
TOWN MEETINGS. 

1. The annual meeting of each town shall be held in 
Februaiy, March, or April ; and other meetings at such 
times as the selectmen may order. Meetings may be ad- 
journed from time to time, and to any place within the 
town. 1 

2. The words " annual meeting," when applied to towns, 
shall mean the annual meeting required by law to be held 
in the months of February, March, or April. 2 

3. The governor, lieutenant-governor, counsellors, secre- 
tary, treasurer, and receiver-general, auditor, attorney- 
general, and senators and representatives in the general 
court, shall be elected annually on the Tuesday next after 
the first Monday of November, as prescribed in the consti- 
tution. 3 

4. Every town meeting shall be held in pursuance of a 
warrant under the hands of the selectmen, directed to the 
constables or some other persons appointed by the selectmen 
for that purpose, who shall forthwith notify such meeting 
in the manner prescribed by the by-laws or a vote of the 
town. The selectmen may by the same warrant call two 
or more distinct town meetings for distinct purposes. 4 

5. The warrant must be signed by a majority of the selectmen, 
otherwise the meeting will not be legal. 5 And it is the law of the 
construction of statutes in Massachusetts that " words purporting to 

1 Gen. Stats, ch. 18, § 20. The meetings in certain cases for drawing 
adjournment should be to a fixed jurors. 

future time. Reed v. Acton, 117 3 Gen. Stats, ch. 8, § 1. 

Mass. 391. 4 Gen. Stats, ch. 18, § 21. 

2 Gen. Stats, ch. 3, § 7. See chap- 5 Reynolds v. New Salem, 6 Met. 
ter hereafter on the Duties of Town 340. 

Officers in reference to Jurors; for 



34 TOWN AND PARISH OFFICER. 

give a joint authority to three or more public officers or other per- 
sons, shall be construed as giving such authority to a majority of 
such officers or persons." 1 But seals to the warrant are not necessary. 2 

6. It is sufficient for the constables or persons to whom the war- 
rant is directed to return that "pursuant to the warrant they have 
notified," &c, or that they have notified the inhabitants "as the law 
directs," or " agreeable to the within warrant they have notified the 
inhabitants of, &c, of the time, place, and purpose, of the within 
meeting," 3 but this indefiniteness is not allowable in the return of a 
sheriff of his service of a writ, and it would undoubtedly be better that 
the return to the warrant should specify how and when the service 
was made. 

7. As to the manner of notifying meetings, the court say, 4 the time 
that shall elapse between the notification of the meeting and the 
holding of the same must, of course, be a reasonable one. In the 
absence of any vote of the town on the subject, usage would aid in 
deciding the legality of the notice. If there had been an entirely uni- 
form practice of notifying a certain number of days before the meet- 
ing, for a considerable length of time, and such meetings thus called 
had been sanctioned by the silent acquiescence of the inhabitants, 
and their adoption of the meetings, &c, as properly called by trans- 
acting at them their ordinary business, a meeting so called would be 
reasonably notified in point of time, that where no vote of the town 
exists as to the time of posting up notice, and such return is posted 
up seven days before the meeting, and in proper places and manner 
in every other respect, and due return of the service of such warrant 
made by the constable, the votes passed at such meeting are not to be 
held invalid upon the ground that the meeting was not legally noti- 
fied. The period of seven days seems a reasonable period. It is 
that prescribed by the constitution for meetings for choice of sena- 
tors, ch. 1, § 2. It is that prescribed for the first meeting of corpo- 
rations. 

8. The ma3 7 or and aldermen and selectmen of the sev- 
eral cities and towns shall, as provided in chapter seven, 5 
call meetings to be held on the Tuesday next after the first 
Monday in November in the year one thousand eight hun- 
dred and sixty, and thence afterwards biennially, on the 
Tuesday next after the first Monday in November, for the 
voters to give their votes for representatives in congress. 

1 Gen. Stats, ch. 3, § 7. 5 The provisions of chapter seven, 

2 Colman v. Anderson, 10 Mass. though repealed, are incorporated in 
105. chapter 376 of the Stats, of 1874, 

3 Briggs v. Murdock, 13 Pick. 305. which will be found in Chapter IV. 

4 Rand v. Wilder, 11 Cush. 296. of this book. 



TOWN MEETINGS. 35 

9. In case of no choice in a congressional district, the 
governor shall cause precepts to issue to the mayor and 
aldermen and selectmen of the several cities and towns in 
the district, directing them to call a new meeting on the 
day appointed in such precept, for the voters to give their 
votes for a representative in congress. The precept shall 
be accompanied with a list of all the persons voted for in 
the district who received fifty votes or more according to 
the next preceding return, and shall show the number of 
votes for each of such persons ; similar proceedings shall 
be had thereon and the same returns made as in an origi- 
nal election ; and the like proceedings shall be repeated as 
often as occasion may require. 

10. When a vacancy happens in the representation of 
this commonwealth in congress, the governor shall cause 
precepts to issue for a new election in the district where 
the vacancy exists ; and similar proceedings shall be had 
thereon as in an original election. 

11. The several sheriffs, upon receiving precepts from 
the governor for the election of a representative in con- 
gress, shall seasonably transmit them to the officers of the 
towns or cities within their respective counties to whom 
they are directed. 1 

If a town officer wilfully neglects or refuses to perform any duty 
required of him in the four preceding sections, he shall forfeit for 
each offence a sum not exceeding two hundred, nor less than thirty 
dollars. 2 

12. The warrant shall express the time and place of 
the meeting, and the subjects to be there acted upon ; the 
selectmen shall insert therein all subjects which may, in 
writing, be requested of them by any ten or more voters 
of the town, and nothing acted upon shall have a legal 
operation, unless the subject-matter thereof is contained in 
the warrant. 3 

13. But it is sufficient if the warrant gives intelligible notice of 
the subjects to be acted upon. An article in the warrant " to hear 

i Gen. Stats, ch. 9, §§ 3, 5, 6, 7. 3 Gen. Stats, ch*. 18, § 22. 

2 Gen. Stats, ch. 9, § 8. 



36 TOWN AND PARISH OFFICER. 

the report of any committee heretofore chosen, and pass any vote in 
relation to the same," is a form of notice for action on reports of 
committees of common use and sanctioned by authority, and it is 
sufficient to enable the town to grant money upon it, if the subject is 
one that is likely to require money.* Whenever practicable, however, 
a more definite specification of the committee or the objects to be 
voted on would be better. 

Under an article in the warrant "to elect town officers tor the 
ensuing year," the town may invest such officers with any special 
authority in the discharge of their duties which it is authorized by 
statute to confer upon its officers. 2 

14. If the selectmen unreasonably refuse to call a meet- 
ing, any justice of the peace of the county, upon the appli- 
cation of ten or more legal voters of the town, may call 
such meeting by a warrant under his hand directed to 
the constables of the town, if any, otherwise to any of the 
persons applying therefor, directing them to summon 
the inhabitants qualified to vote in town affairs to assemble 
at the time and place and for the purpose expressed in the 

warrant. 

15. If by reason of death, resignation, or removal irom 
town', a major part of the selectmen thereof originally 
chosen vacate their office, those who remain in office may 
call a town meeting. 3 

i Fuller v. Groton, 11 Gray, 340; the subject of appropriating money to 

Grover v. Pembroke, 11 Allen, 88. a particular object seems necessarily 

In Torrey v. Milburv, 21 Pick. 68, to involve the consideration of the 

the warrant was " to "see if the town means of raising the money, unless 

will make an appropriation towards there is something in the warrant 

purchasing a fire-engine." The vote itself which indicates that the word 

was " to raise and appropriate $400 ' appropriate ' is used in a more lim- 

for the purchasing of a fire-engine, ited sense. For instance, if a war- 

and necessary apparatus, provided," rant were to see if the town would 

&c The court were of opinion that appropriate to a specific object money 

under this warrant the town were already in the treasury, or under the 

authorized to pass the vote which control of the town it might well be 

they did. Shaw, C. J., says : « The contended, that under such a warrant 

objec of a warrant is to give pre- it could not be understood that the 

vious notice to the inhabitants of the town could be called on to consider 

subjects to be acted on, and, if this the question of laying a tax for the 

is done substantially, it is sufficient, same object." 

In such a body as a town, which or- « Sherman v . Torrey 99 Mas, 472. 

dinarily has no funds, and no sources 3 Gen. Stats, ch. 18, §§ 2d, 24, 
of revenue but taxation, to consider 



TOWN MEETINGS. 37 

16. (In each }-ear when the election of president and 
vice-president of the United States takes place) the mayor 
and aldermen and selectmen of the several cities and 
towns shall, in the manner provided in section three of 
chapter seven (of the General Statutes), call meetings to 
be held on the Tuesday next after the first Monday in 
November of such year, for the voters to give their votes 
for the whole number of electors to which the common- 
wealth is entitled. All laws in relation to the duties of 
sheriffs, city and town officers, and voters, in the election 
of civil officers, shall, as far as the same ma}' be appli- 
cable, apply to the meetings and elections held respecting 
the choice of electors of president and vice-president of the 
United States ; and like penalties shall be incurred for the 
violation thereof. 1 

i Gen. Stats, ch. 9, §§ 10, 18. 



38 TOWN AND PARISH OFFICER. 



CHAPTER IV. 

VOTERS. THE MANNER OF CONDUCTING ELECTIONS 
AND RETURNING VOTES. 

1. Every male citizen of twenty-one years of age and 
upwards (except paupers, persons under guardianship, and 
persons excluded by article twenty of the amendments to 
the constitution) , who has resided in the state one year, 
and within the city or town in which he claims a right to 
vote, six months next preceding any election of city, town, 
county, or state officers, or of representatives to congress, 
or electors of president and vice-president, and who has 
paid, by himself, his parent, master, or guardian, a state 
or county tax assessed upon him in this state within 
two years next preceding such election, and every citizen 
exempted from taxation but otherwise qualified, shall have 
a right to vote in all such elections ; and no other person 
shall have such right to vote. 

The amendment to the constitution above mentioned is : — 
Art. XX. No person shall have the right to vote, or 
be eligible to office under the constitution of this common- 
wealth, who shall not be able to read the constitution in 
the English language, and write his name : provided, how- 
ever, that the provisions of this amendment shall not apply 
to any person prevented by a pl^sical disability from 
complying with its requisitions, nor to any person who now 
has the right to vote, nor to any persons who shall be sixty 
years of age or upwards at the time this amendment shall 
take effect. 

2. In any election of representatives to congress, no 
person shall be allowed to vote for the same until he shall 
have resided in the congressional district where he offers 
to vote six months next preceding such election, and shall 



OF ELECTIONS AND RETURNING VOTES. 39 

be otherwise qualified according to the constitution and 
laws : provided, that when the state shall be districted anew 
for members of congress, he shall have the right so to 
vote in the district where he is located by such new arrange- 
ment ; and provided, also, that no voter residing in any 
city which now is, or hereafter may be, divided by the line 
between congressional districts, shall be deprived of his 
vote in the district in which he was assessed, or liable to 
assessment, on the first day of Ma}- next preceding such 
congressional election, if he be otherwise qualified. 

3. The collectors of state and county taxes in each city 
and town shall keep an accurate account of the names of 
all persons from whom the}' receive payment of any state 
or county tax, and of the time of such payment ; and, 
upon request, shall deliver to the person paying the same 
a receipt specifying his name, and time of payment ; and 
such receipts shall be admitted as presumptive evidence 
thereof. 

4. The collectors, whether the time for which they were 
chosen has expired or not, shall twice in each year, namely, 
once not more than twenty nor less than fifteen days before 
the annual city or town elections, and once not more than 
twenty nor less than fifteen days before the Tuesday next 
after the first Monday in November, return to the mayor 
and aldermen and selectmen of their respective cities and 
towns an accurate list of all persons from whom they 
have received payment of an}' state or county tax subse- 
quently to the time appointed for making their last preced- 
ing return. 

5. Ever}' collector neglecting to make such return shall 
forfeit one hundred dollars for each neglect ; and twenty 
dollars for every name in respect to which he makes a false 
return. 

6. When any person, on or before the fifteenth day of 
September, in any year, gives notice in writing, accom- 
panied by satisfactory evidence, to the assessors of a city 
or town, that he was on the first day of May of that year 
an inhabitant thereof, and liable to pay a poll-tax, and 



40 TOWN AND PARISH OFFICER. 

furnishes under oath a true list of his polls and estate, 
both real and personal, not exempt from taxation, the 
assessors shall assess him for his polls and estate ; but 
such assessment shall be subject to the provisions of 
chapter one hundred and twenty-one of the acts of the 
year one thousand eight hundred and sixty-five ; and the 
assessors shall, on or before the first day of October, 
deposit with the clerk of the city or town a list of the 
persons so assessed. The taxes so assessed shall be 
entered in the tax list of the collector of the city or town, 
and he shall collect and pay over the same in the manner 
specified in his warrant. 

7. The mayor and aldermen of cities and selectmen of 
towns shall, at least fifteen 1 days before the annual city and 
town elections, and at least fifteen days before the Tues- 
day next after the first Monday in November annually, 
make correct alphabetical lists of all the persons qualified 
to vote for the several officers to be elected at those 
periods, and shall at least fifteen days before said elections 
cause such lists to be posted up in two or more public 
places in their respective cities and towns. 

8. The selectmen of towns shall be in session at some 
convenient place for a reasonable time, within forty-eight 
hours next preceding all meetings for the election of town, 
county, or state officers, or of representatives in congress, 
or of electors of president and vice-president; for the 
purpose of receiving evidence of the qualifications of 
persons claiming a right to vote in such elections and of 
correcting the lists of voters. Such session shall be holden 
for one hour at least before the opening of the meeting on 
the day of the election, and notice of the time and place 
of holding the sessions shall be given by the selectmen 
upon the lists posted up as provided in the preceding 
section. 

9. In every town where the number of qualified voters 
exceeds one thousand, a session of the selectmen for like 
purpose to that mentioned in section eight of this act (pre- 

1 Stats. 1878, ch. 233, § 1. 



OF ELECTIONS AND RETURNING VOTES. 41 

ceding section) shall be holclen on the day immediately 
preceding the meeting, and for as much longer time pre- 
vious to said day as the}' judge necessary for the purpose 
aforesaid. When the day immediately preceding such 
meeting is Sunday, such session shall be holden on the 
Saturday preceding. 

10. The selectmen shall also enter on such lists the 
name of any person known to them to be qualified to vote, 
and shall erase therefrom the name of any person known 
to them not to be qualified. 

11. The mayor and aldermen and selectmen before 
entering upon the lists the name of a naturalized citizen 
shall require him to produce for their inspection his papers 
of naturalization and be satisfied that he has been legally 
naturalized ; but they need not require the production 
of such papers after they have once examined and passed 
upon them. 

12. Whoever gives a false name or a false answer to the 
mayor and aldermen or selectmen when in session for the 
purposes aforesaid shall forfeit the sum of thirty dollars 
for each offence. 

13. The mayor and aldermen and selectmen, if they 
have duly entered on said lists the names of all persons 
returned to them by the collectors, shall not be answerable 
for any omissions therefrom. 

14. A city or town officer who wilfully neglects or 
refuses to perform any duty required of him by the pro- 
visions of this act shall for each offence forfeit a sum not 
exceeding two hundred dollars. 

15. Meetings for the election of national, state, district, 
and count}' officers may be opened as earl}' as seven 
o'clock in the forenoon, and shall be opened as early as 
two o'clock in the afternoon of the election day, and the 
mayor and aldermen and selectmen shall decide whether 
such officers shall be voted for on one ballot or at the same 
time on separate ballots, and shall give notice thereof in 
the warrant calling the meeting. 

16. Such meetings in towns shall be called by the select- 



42 TOWN AND PARISH OFFICER. 

men in the manner ordered by the towns, and the warrant 
for notifying such meetings shall specify the time when the 
polls for the choice of the several officers shall be opened, 
and the hour at which the polls may be closed. The polls 
in towns shall be kept open at least two hours, and for such 
longer time as a majority of the voters present shall by 
vote direct, but they shall not be closed until the hour 
named in the warrant has arrived ; and in no case shall 
the polls be kept open after the hour of sunset. 

17. At town meetings for the election of national, state, 
district, and county officers, the selectmen shall preside ; 
and shall have all the powers which are vested in mode- 
rators. 

18. The presiding officers at meetings held for the elec- 
tion of town or other officers shall be provided with a 
complete list of the persons qualified to vote at such elec- 
tion ; and no person shall vote at an election whose name 
has not been previously placed on such list, nor until the 
presiding officers find and check his name thereon : pro- 
vided, however, that in the election of town officers it shall 
not be necessary to find and check the name of the voter, 
except in the cases where the election is, or may be, re- 
quired by statute to be by ballot ; and, in all other cases, 
the check-list shall be used or not, as the town, at its 
meeting, may determine, except that in the election of 
moderators of town meetings, held for the choice of town 
officers, the check-list shall be used. 

Representatives to the General Court 

19. Warrants for meetings for the election of representa- 
tives to the general court shall direct that the voters in 
towns, cities, and wards, be notified to bring in their votes 
on one ballot for the representatives to which their several 
districts are entitled, and shall specify the number thereof. 
And such elections shall be conducted, and the results 
thereof determined, as provided in chapter seven of the 
General Statutes, except as otherwise provided in this act. 



OF ELECTIONS AND RETURNING VOTES. 43 

20. In towns, cities, and wards, composing a part of a 
representative district, the selectmen and town clerks and 
ward officers, in open town and ward meetings, and the 
mayor and aldermen and city clerks, shall forthwith, upon 
the vote for representative being recorded, make out under 
their hands and seal up and deliver to their respective 
clerks a true transcript of such record. 

21. The county commissioners, ma}'or and aldermen, or 
board of aldermen, or such special commissioners as are 
authorized to apportion the representation assigned to the 
several counties, at their meeting for such purpose, shall 
designate a place in each representative district, not con- 
tained in or consisting of one town or city, at which the 
clerks of towns, cities, and wards, composing such district, 
shall assemble for the purpose of ascertaining the result of 
elections. Due notice of such appointment shall be given 
b}' said commissioners or mayor and aldermen to every 
town, city, and ward in the district. Such place of meet- 
ing may be changed once in two }'ears by the same author- 
ity, after a hearing on the petition of two of such clerks. 

22. The clerks of cities, towns, and wards, composing 
such districts, shall meet at noon on the day following an 
election for representatives, at the place so designated, and 
shall examine and compare such transcripts and ascertain 
what persons have been elected. If an}' error appears in a 
transcript or return, the clerks shall forthwith give notice 
thereof to the officers required to make the return, and 
such officers shall forthwith, in conformity with the truth 
and under oath, make a new return, which, whether made 
with or without such notice, shall be received and examined 
by said clerks within two claj's after the time appointed for 
the meeting ; and for that purpose the meeting may be 
adjourned not exceeding two days. No return shall be 
rejected when the number of votes given for each candidate 
can be ascertained. 

23. Such clerks shall at such meeting make out under 
their hands a complete return of the names of all persons 
for whom votes were given in the district, and the number 



44 TOWN AND PARISH OFFICER. 

of votes for each person, and a record of the return shall 
be. made in the book of records of their respective cities, 
towns, and wards, within four days after the da} 7 of the 
meeting. 

24. When it is ascertained who is elected representative 
in a district, composed of one town or cit} 7 , or one or more 
wards of a city, the selectmen or mayor and aldermen 
shall make out duplicate certificates thereof, one of which 
they shall transmit to the office of the secretary of the 
commonwealth on or before the first Wednesday in Janu- 
ary following, and the other b} 7 a constable or other author- 
ized officer to the person elected, within ten days after the 
day of election. 

25. When the clerks of cities, towns, and wards com- 
posing a district, at their meeting for the purpose, ascertain 
that a representative is elected in their district, they or 
a majorit}' of them shall make out duplicate certificates 
thereof, one of which they shall deliver into the office of 
the secretary of the commonwealth, on or before the first 
day of Januar} 7 following, and the other by a constable 
or other authorized officer transmit to the person elected, 
within ten days after the day of election. 

26. Such certificates of election shall be in substance as 
follows : — 

Commonwealth of Massachusetts, county of . Pursuant 

to a law of this commonwealth, the qualified voters of representa- 
tive district number , in their several meetings on the 
day of November instant, for the choice of representatives in general 
court, did elect , being inhabitants of said district, 
to represent them in the general court to be holden on the first 
Wednesday of January next 

Dated at the day of in the year one 

thousand eight hundred and 

Such certificate shall have a return thereon, signed by 
the officer authorized to give such notice, and stating that 
notice of the choice was given to the persons therein men- 
tioned, and that said persons were summoned to attend 
the general court accordingly. 

27. If it shall appear that no choice of representative 



OF ELECTIONS AND RETURNING VOTES. 45 

has been effected b}^ reason of two or more persons having 
the same number of votes so that no person has a plurality, 
a certificate of the fact shall be transmitted to the secre- 
tary of the commonwealth by the same officers and in the 
same manner as is provided in sections twenty-nine and 
thirty of this act for one of the certificates of election in 
cases when an election is made. 

28. When a vacancy occurs in a representative district, 
the speaker of the house of representatives shall, in the 
precept which he ma} T issue b} T order of the house giving 
notice of such vacancy, appoint a time for an election to 
fill the same. Upon the reception of such precept, the 
mayor and aldermen of a city and the selectmen of the 
towns comprising the district, shall issue their warrants 
for an election on the day named in the precept ; and 
similar proceedings shall be had in filling such vacancy as 
in the original election of representatives. 

29. The secretary of the commonwealth shall furnish to 
cities and towns blank forms for certificates, transcripts, 
and returns required under this act. Such blanks for 
returns shall have printed thereon sections twenty-nine, 
thirty, thirty-one, and thirty-two of this act, and the first 
four sections of chapter two of the General Statutes. 

30. In all returns of elections, the whole number of bal- 
lots given in shall be distinctly stated in words at length ; 
and blank pieces of paper shall not be counted as ballots : 
provided, that the omission to state the whole number of 
ballots shall not make the return invalid in an} T case in 
which the true result of the election can be ascertained 
from the other parts of the return (or by a recount made 
in conformity with the provisions of law). 1 

31. Selectmen giving a certificate of election to a person 
voted for as representative to the general court, not in 
accordance with the declaration of the vote in open town 
meeting at the time of the election, shall forfeit three 
hundred dollars. 

32. Clerks wilfully signing a certificate not in conformity 

i Stats. 1876, ch. 188, § 8. 



46 TOWN AND PARISH OFFICER. 

with the result of an election, as apparent by the transcripts 
and returns, shall forfeit a sum not exceeding three hun- 
dred dollars. 

33. Towns and cities may provide suitable compensation 
to clerks and selectmen for services performed by them 
under the requirements of this act. 

34. In case of a vacancy in the office of town, city or 
ward clerk, or any disability in such clerk to perform the 
duties required by this act, the selectmen, mayor and alder- 
men, or board of aldermen, or warden, may appoint a clerk 
pro tempore, who shall be sworn and perform such duties. 

35. At every election in towns for officers other than 
town officers, the selectmen shall cause all ballots given in, 
after having been counted, declared, and recorded, to be 
secured in an envelope and sealed, and they shall indorse 
on such envelope for what officers the enclosed ballots were 
cast, and at what election, and the same shall be sealed, 
indorsed, and delivered to the town clerk, before the ad- 
journment of the meeting at which the ballots were cast. 1 

36. The clerk of each town shall receive the envelopes containing 
the ballots thrown at any election, sealed as provided in the preceding 
section, and shall retain them in his care until the requirements of 
this section, or of any act which may hereafter be passed in amend- 
ment hereof, have been complied with ; and as soon as may be there- 
after the said clerk shall cause such ballots to be destroyed without 
examining them or permitting them to be examined by any person 
whatsoever, and shall make an entry in the records of the city or 
town that they have been so destroyed. 

If within thirty days next following the day of an election a person 
who received votes for any office at said election shall serve upon the 
clerk of any city or town, by himself, his agent or attorney, a state- 
ment in writing claiming an election to such office, or declaring an in- 
tention to controvert or dispute the election of any other person w r ho 
has received, or who may receive, a certificate of election for the 
same, the clerk of such city or town shall retain the envelope con- 
taining the ballots thrown at such election, sealed as provided by 
law, subject to the order of the body to which either of said persons 
may claim or be held to have been elected, or until such claim shall 
have been withdrawn or such election shall have been decided by the 
authority competent to determine the same. 

1 Stats. 1874, ch. 376. 



OF ELECTIONS AND RETURNING VOTES. 47 

Whenever a district for the election of a representative or repre- 
sentatives to the general court is composed of one or more wards of 
a city, together with one or more towns, the meeting of clerks pre- 
scribed by section twenty-seven of said chapter (twenty-two of this 
chapter) shall be held on the Tuesday next following the day of elec- 
tion, instead of being held on the day prescribed in said section ; and 
all provisions of law relative to the meeting of the clerks shall apply 
to their meeting so held on said Tuesday, continued by adjournment 
not exceeding two days, if need be. 1 

37. In all elections in towns in which a check-list is 
required by law to be used (except elections for town 
officers) , the selectmen shall cause the check-list so used 
to be enclosed and sealed in an envelope in the same man- 
ner, but not in the same envelope, as the ballots cast at 
said election are required by law to be secured by section 
forty-six of this act (thhly-five of this chapter) ; and a 
majorit}' of the selectmen shall certify on such envelope to 
the identity of the check-list so enclosed : provided, that 
nothing in this act shall be construed to prevent the select- 
men from furnishing a copy of a check-list after it has 
been used in any election, upon the application of not less 
than ten legal voters, resident therein ; and immediately 
upon such copy being furnished, the check-list shall be 
again sealed up, with a new certificate attached, by which 
the identity and original condition shall be certified by a 
majority of the selectmen. 2 

38. When the right of a person offering a ballot at any election in 
towns, for officers other than town officers, is challenged for any 
cause recognized by existing laws, the selectmen, if they receive the 
same, shall require the name and residence of the voter to be written 
thereon, either by himself or by some one in his behalf, and they shall 
add thereto the name of the challenger and the cause assigned for 
challenging. And if such ballot shall be offered sealed, the writing 
as aforesaid may be upon the envelope covering the same, and the 
selectmen shall mark and designate such ballot by writing thereon the 
name of the person by whom it was cast, before it is counted, and at 
the close of the election the same shall be returned to the envelope in 
which it is deposited. 

Whoever wilfully or negligently violates the provisions of this sec- 
tion shall be punished by a fine of not less than twenty or more than 

i Stats. 1876, ch. 188, §§ 1, 2, 3. 2 Stats. 1874, ch. 376, § 48. 



48 



TOWN AND PARISH OFFICER. 



two hundred dollars, or by imprisonment in the county jail for a term 
not exceeding one year. 1 

39. Whoever wilfully or negligently violates any provision of the 
preceding sections thirty-five and thirty-seven shall be punished by 
a fine not exceeding two hundred dollars, or by imprisonment in the 
county jail not exceeding one year. 2 

40. The selectmen of each town shall make and keep a 
record of all persons entitled to vote therein at any elec- 
tion for town, county, state, or national officers, which 
shall be known as a register of voters. 

41. Said register shall contain the names of such voters 
written in full, the street or place in the town where each 
resides at the time of registration, each voter's occupation, 
and such other specifications as may be necessary to fully 
identify the persons named, and the date of registration. 

42. No name shall be added to a voting list in any 
town until it has been recorded in said register, and none 
shall be added to a list of voters in use at any election 
after the opening of the polls, except to correct a clerical 
error or omission ; and all names on voting lists shall be 
written or printed in full. 

43. The secretary of the commonwealth shall furnish 
to each town, at cost price, on or before the first day of 
July in the current year, suitable blank books for said reg- 
istration, and thereafter said registers shall be uniform in 
character,- and such books shall contain seven blank col- 
umns with uniform headings in the following form : 3 — 



CO 








o 














H * 


o 




























*3 H 






NAME. 


§ 


& O 

co p* 


co > 


m 
M 


d 




& 


fl o 


° o3 


£ 


CO 






s 


CO J2 


>> 


CO 

M 


A 




0Q 


o 


A 


A 


£ 




Pi 


O 


£ 


% 

















1 Stats. 1877, ch. 206. 

2 Stats. 1874, ch. 376, §50. 



3 Stats. 1877, ch. 208. 



OF ELECTIONS AND RETURNING VOTES. 49 

44. In the registers of voters in towns, it shall be suffi- 
cient if the first christian name of each voter, or that 
name by which he is generally known, is written or printed 
in full, with the initial or initials of any other name or 
names which he may have in addition to his surname. 

45. It shall be the duty of the selectmen, in making 
said registers, to cause proper notices to be published or 
posted, and proper opportunity given, at least two weeks 
before any annual election in said town, to all persons to 
present themselves for registration ; and before registering 
any person hereafter, they shall inquire into his qualifica- 
tions to vote, and shall require such person to write his 
name before they place it in said register, unless such per- 
son is exempted by article twenty of the amendments to 
the constitution, or unless his name is upon the register or 
voting list of the preceding year. 1 

46. The selectmen shall not be answerable for refusing 
the vote of any person whose name is not on the list of 
voters, unless such person before offering his vote furnishes 
them with sufficient evidence of his having the legal quali- 
fications of a voter at such meeting, and requests them to 
insert his name on said list. 2 

47. The moderator of a town meeting shall receive the 
votes of all persons whose names are borne on the list of 
voters as certified by the selectmen ; and shall not be an- 
swerable for refusing the vote of a person whose name is 
not on said list. 

48. No vote shall be received by the presiding officers 
at any election provided for in this chapter, unless pre- 
sented for deposit in the ballot-box by the voter in per- 
son, in a sealed envelope, or open and unfolded, and so 
that such officers can know but one ballot is presented. 

49. Votes for different persons for the same office found 
in one envelope shall not be counted ; and if more than 
one vote for the same person for the same office is found 
in one envelope, but one such vote shall be counted, and 
no vote shall be counted which does not clearly indicate in 

i Stats. 1878, ch. 251. 2 Gen. Stats, ch. 7, § 10. 



50 TOWN AND PARISH OFFICER. 

writing the office for which the person voted for is de- 
signed, except when but one office is voted for. 

50. In all elections of civil officers by the people, the 
person or persons having the highest number of votes 
shall be deemed and declared to be elected ; but no per- 
sons receiving the same number of votes shall be deemed 
to be elected, if thereby a greater number would be elected 
than required by law. 

51. The votes in elections for national, state, county, 
and district officers shall be received, sorted, and counted 
by the selectmen, and by the ward officers, and public 
declaration made thereof in open town and ward meetings. 
The names of persons voted for, the number of votes 
received for each person, and the title of the office for 
which he is proposed, shall be entered in words at length 
by the town and ward clerks in their records. The ward 
clerks shall forthwith deliver to the city clerks certified 
copies of such records, who shall forthwith enter the same 
in the city records. 1 

52. In each year when the election of president and 
vice-president of the United States takes place, there 
shall be chosen as many electors of president and vice- 
president as the commonwealth is at such time entitled to. 

53. The names of all the electors to be chosen shall be 
written on each ballot ; and each ballot shall contain the 
name of at least one inhabitant of each congressional dis- 
trict into which the commonwealth shall be then divided ; 
and shall designate the congressional district to which he 
belongs. 

54. Votes for electors shall be counted, recorded, cer- 
tified, sealed, and transmitted to the secretary of the com- 
monwealth, as provided in sections fifteen, sixteen, and 
seventeen of chapter seven. 2 

55. Whoever knowing that he is not a qualified voter at 

i Gen. Stats, ch. 7, §§ 11, 15. Section 16 applies only to cities. Sec- 

2 Gen. Stats, ch. 9, §§ 9, 11, 12. tions 15 and 17 are sections 6 and 7 

The sections in the above section 55 of Chapter VII. hereafter, 

refer to those of Gen. Stats, ch. 7. 



OF ELECTIONS AND RETURNING VOTES. 51 

an election wilfully votes for any officers to be then chosen 
shall forfeit a sum not exceeding one hundred dollars for 
each offence. 

56. If a voter knowingly gives more than one ballot at 
one time of balloting at an election, he shall forfeit a sum 
not exceeding one hundred dollars. 1 

57. Whoever wilfully gives a false answer to the select- 
men or moderator presiding at an election shall forfeit 
for each offence a sum not exceeding one hundred dollars. 

58. Whoever by bribery, or threatening to discharge 
from his employment, or to reduce the wages of, or by a 
promise to give employment or higher wages to, a person, 
attempts to influence a qualified voter to give or withhold 
his vote in an election, shall be punished by fine not ex- 
ceeding three hundred dollars or by imprisonment in the 
county jail or house of correction for a term not exceeding 
one year, or both, at the discretion of court. 

59. Whoever wilfully aids or abets any one, not legally 
qualified, in voting or attempting to vote at an election, 
shall forfeit a sum not exceeding fifty dollars for every 
such offence. 

60. Whoever is disorderly in a meeting held for an 
election mentioned in this chapter shall forfeit a sum not 
exceeding twenty dollars. 

61. If a city or town officer wilfully neglects or refuses 
to perform the duties required of him respecting elections 
by the provisions of this chapter (ch. 7, Gen. Stats.), he 
shall for each offence forfeit a sum not exceeding two hun- 
dred dollars. 2 

62. All laws in relation to the duties of sheriffs, city and 
town officers, and voters, in the election of civil officers, 
shall, as far as the same may be applicable, apply to the 
meetings and elections held respecting the choice of elec- 
tors of president and vice-president of the United States ; 
and like penalties shall be incurred for the violation 
thereof. 8 

1 See other provisions on same sub- 2 Gen. Stats, ch. 7, §§ 28-34. 
ject in this chapter. 3 Gen. Stats, ch. 9, § 18. 



52 TOWN AND PARISH OFFICER. 

63. Whoever votes, or attempts to vote upon any name other than 
his own at any national, state, or municipal election, or whoever know- 
ingly gives more than one ballot at one time of balloting at an elec- 
tion, shall be punished by imprisonment in the house of correction for 
not less than three months nor more than one year. 

If any person shall pay, give or bestow, or directly or indirectly 
promise, any gift or reward to secure the vote or ballot of any person 
for any' officer to be voted for at any national, state, or municipal 
election, the person so offending, upon conviction before the court 
having jurisdiction of such offence, shall be punished by a fine of not 
less than fifty nor more than one thousand dollars, or by imprison- 
ment in the house of correction not less than three months nor more 
than one year, or by both, at the discretion of the court, 

Whoever aids and abets any person in the commission of either of 
the offences described in this section shall be punished by a fine not 
exceeding one thousand dollars or by imprisonment in the house of 
correction not exceeding one year. 1 

64. Whoever in an assembly of people, met for a lawful 
purpose, at which an alphabetical list of voters is used in 
voting, votes, or attempts to vote, under any name other 
than his own, shall be punished by a fine not exceeding fifty 
dollars, or by imprisonment in the jail not exceeding thirty 
days, on complaint in any court of competent jurisdiction. 2 

i Stats. 1876, ch. 172. 2 Stats. 1874, ch. 344. 



MODERATORS. 53 



CHAPTER V. 

MODERATORS. 

1. At every town meeting, except for the election of 
national, state, district, and county officers, a moderator 
shall first be chosen. 

2. During the election of a moderator, the town clerk, if 
present, shall preside ; if he is absent, or there is no town 
clerk, the selectmen shall preside ; and the town clerk and 
selectmen respectively shall in such case have the powers 

.and perform the duties of a moderator. 1 

3. The moderator shall preside in the meeting, may in 
open meeting administer the oaths of office to any town 
officer chosen thereat, shall regulate the business and pro- 
ceedings of the meeting, decide all questions of order, and 
make public declaration of all votes passed. When a vote 
so declared by him is immediately upon such a declaration 
questioned by seven or more of the voters present, he 
shall make the vote certain by polling the voters or dividing 
the meeting, unless the town has by a previous vote or 
their by-laws otherwise provided. 

4. No person shall speak in the meeting without leave 
of the moderator, nor while another person is speaking by 
his permission ; and all persons shall at his request be 
silent. 

5. If a person behaves in a disorderly manner, and after 
notice from the moderator persists therein, the moderator 
may order him to withdraw from the meeting ; and, on his 
refusal, may order the constables or any other persons to 
take him from the meeting and confine him in some con- 
venient place until the meeting is adjourned. The person 
so refusing to withdraw shall for such offence forfeit a sum 
not exceeding twenty dollars. 

i Gen. Stats, ch. 18, §§ 25, 26. 



54 TOWN AND PARISH OFFICER. 

6. A moderator or other presiding officer who at a town 
meeting, before the poll is closed and without the consent 
of the voter, reads, examines, or permits to be read or 
examined, the names written on such voter's ballot, with a 
view to ascertain the candidate voted for by him, shall for- 
feit a sum not exceeding fifty dollars. 1 

1 Gen. Stats, ch. 18, §§ 27-30. 



ELECTION AND APPOINTMENT OF TOWN OFFICERS. 55 



CHAPTER VI. 

ELECTION AND APPOINTMENT OF TOWN OFFICERS. 

1. At the annual meeting every town shall choose from 
the inhabitants thereof the following town officers, who 
shall serve during the year, and until others are chosen 
and qualified in their stead : — 

A town clerk, who if present shall be forthwith sworn, 
either by the moderator, or a justice of the peace ; 

Three, five, seven, or nine selectmen ; 

Three or more assessors, and, if the town deems it ex- 
pedient, three or more assistant assessors ; 

Three or more overseers of the poor ; 

A town treasurer ; 

One or more surveyors of highwa} T s ; 

Constables, who shall also be collectors of taxes unless 
other persons are specially chosen collectors ; 

Field drivers ; 

Two or more fence-viewers ; 

One or more surveyors of lumber ; except that surveyors 
of lumber shall not be so chosen in towns included in the 
district established by chapter forty-nine, section one hun- 
dred twenty- [six] [one] : * 

Measurers of wood and bark, unless the town authorizes 
the selectmen to appoint them ; and 

All other usual town officers. 

All the town officers designated by name in this section 
shall be sworn. 

2. The election of town clerks, selectmen, assessors, 
treasurer, constables, and the moderator of the meetings 
held for the choice of town officers, shall be by written 

i Gen. Stats. 



56 TOWN AND PARISH OFFICER. 

ballots ; (also fence- viewers) ; 1 and the election of all other 
town officers in such mode as the meeting determines, ex- 
cept in cases otherwise provided by law. 2 

3. In the election of moderators of town meetings, held for the 
choice of town officers, the check-list shall be used. In the election of 
other town officers, it shall not be necessary to find and check the 
name of the voter in the list of voters, except in the cases where the 
election is, or may be, required by statute .to be by ballot ; and in all 
other cases the check-list shall be used or not, as the town, at its 
meeting, may determine. 3 

4. Where a town chose three assessors, two of whom were sworn, and 
the third did not refuse to accept the trust, but omitted to take the oath 
of office, and when called upon by the other two declined to act, 
and the town did not choose another in his stead, it was held that the 
other two had authority to assess a tax. Upon this point, Shaw, 
C. J., said : " The court are of the opinion, that when three assessors 
are duly chosen by the town, there is a board of assessors. Each is 
an assessor. But, until qualified, by taking the oath, he is not legally 
competent to act. If a majority do qualify, by taking the oath, and 
the third has not taken the oath, still, if he has notice of their pro- 
ceeding to execute the office, and declines to take the oath and act 
with them, their acts will be good, in the same manner as if he had 
taken the oath, and declined to act with them, because he is an as- 
sessor, and the office is full. He may, at any time, take the oath, and 
thus be a qualified assessor ; unless he has legally expressed his non- 
acceptance, or unless the town, in consequence of his neglecting or 
declining to take the oath of office, has filled the vacancy by electing 
another in his place. Whether the town may thus proceed to make 
his mere neglect to take the oath, as a non-acceptance, and thereupon 
fill the vacancy, it is not now necessary to decide. Probably, from 
the necessity of the case, especially if a majority of those chosen 
should thus neglect, they might do so to avoid penalties to which 
they might be otherwise liable. Rev. Stats, ch. 15, §§ 35, 36, 42. 
But, until the town has so done, and filled the vacancy, the office is 
still full ; there is a board, and of these, by force of the statute as 
well as by long usage, the majority may act." 4 

5. A selectman and assessor of taxes may be chosen collector of 
taxes also. 

A collector of taxes may be sworn at any time before entering upon 
the duties of his office ; and his oath need not be matter of record, 
but may be proved by other evidence. 

1 Stats. 1862, ch. 93, § 3. 3 stats. 1874, ch. 376, § 23; ch. 

2 Gen. Stats, ch. 18, §§ 31, 32. IV. of this book, § 18. 

4 George v. Mendon, 6 Met. 511. 



ELECTION AND APPOINTMENT OF TOWN OFFICERS. 57 

A town record of the election of a collector of taxes need not show 
a determination by the town of the manner in which he should be 
chosen. 1 

6. Eveiy person chosen constable shall, if present, 
forthwith declare his acceptance or refusal of the office. 
If he does not accept, the town shall proceed to a new 
election until some one accepts the office and takes the 
oath. 

7. A town which neglects to make choice of selectmen 
or assessors shall forfeit to the use of the commonwealth 
a sum not exceeding five hundred nor less than one hun- 
dred dollars, as the county commissioners shall order. 

8. If a town, at the annual meeting, fails to elect a full 
board of selectmen, or if any of the persons chosen refuse 
to act or omit to be qualified according to law, the select- 
men or selectman chosen and qualified may sign warrants 
for town meetings until a full board is elected. 

9. If a town neglects to choose selectmen or assessors, 
or if the persons chosen do not accept the trust, or, hav- 
ing accepted it, shall not perform the duties, the county 
commissioners may appoint three or more suitable persons 
within the county, to be assessors of taxes for such town, 
who shall have the powers, perform the duties, and receive 
the compensation of assessors chosen by a town. 

10. The selectmen of each town shall annually, in 
March or April, appoint the following town officers, unless 
the inhabitants at their annual meeting choose them : — 

One sealer of weights and measures, and as many more 
as the inhabitants at their annual meeting determine ; and 
they may also appoint a gauger of liquid measures ; and 
the selectmen may at any time remove such sealers or 
gaugers, and appoint others in their places. 

One measurer of wood and bark, and as many more as 
the inhabitants at their annual meeting determine. 

And in every town which has town scales for the weigh- 
ing of hay, one or more persons to have the superintend- 
ence thereof. 2 

i Howard v. Proctor, 7 Gray, 128. 2 Gen. Stats, ch. 18, §§ 33-37. 



58 TOWN AND PARISH OFFICER. 

The ma} T or and aldermen or selectmen of an} r city or 
town where boilers and heavy machinery are sold, shall ap- 
point one or more persons not engaged in the manufacture 
or sale thereof, to be weighers of boilers and heavy ma- 
chinery, who shall be sworn to the faithful discharge of 
their duties, and shall receive such fees as may be ordered 
b} T the board appointing them, which shall be paid by the 
seller, and shall be removable at the pleasure of the ap- 
pointing power. 1 

11. They may at any time appoint police officers, with 
all or any of the powers of constables, except the power 
of serving and executing civil process, who shall hold their 
offices during the pleasure of the selectmen by whom they 
are appointed. 2 

12. An appointment " to superintend the police of the town " is 
sufficient to give the person appointed all the power conferred by 
this section, and this includes under section sixty-nine, ch. 18, Gen. 
Stats, authority to apprehend in any place within the commonwealth 
a person on a warrant issued against him for an offence alleged to have 
been committed within the town for which the officer was appointed. 3 
Also an appointment " on police duty," and the officer need not be 
sworn. 4 An appointment of a police officer by the selectmen of a 
town, " to continue in said office till the next annual town meeting," 
is a valid appointment during their pleasure. 5 

13. After the election or appointment of town officers 
who are required to take an oath of office, the town clerk 
shall forthwith make out a list, containing the names of all 
such persons not sworn by the moderator, and a desig- 
nation of the offices to which they are chosen, and deliver 
the same with his warrant to a constable, requiring him 
within three days to summon each of such persons to 
appear and take the oath of office before the town clerk 
within seven days after such notice ; and the constable 

1 Stats. 1863, ch. 173. « Commonwealth v. Martin, 98 

2 Gen. Stats, ch. 18, § 38. Sections Mass. 4. 

10 and 11 above are repeated in chap- 4 Commonwealth v. Cushing, 99 

ter on General Powers and Duties of Mass. 592. 

Selectmen, as they are equally appli- 6 Commonwealth v. Higgins, 4 

cable to both chapters. Gray, 34. 



ELECTION AND APPOINTMENT OF 'TOWN OFFICERS. 59 

shall within seven days make return of the warrant to the 
town clerk. 1 

14. A constable duly chosen and sworn is qualified to act as col- 
lector of taxes, without any further oath, if another person duly 
chosen collector does not accept the oflice, although that person is 
not summoned in writing to accept the office, and his refusal to accept 
does not appear of record. 2 

15. If a person so chosen and summoned, who is not 
exempt by law from holding the office to which he is 
elected, shall not within seven days take the oath of office 
before the town clerk, or before a justice of the peace, and 
file with the town clerk a certificate thereof under the hand 
of such justice, he shall, unless the office to which he is 
chosen is that of constable or some other for which a dif- 
ferent penalty is provided, forfeit five dollars. 

16. A person removing from the town in which he holds 
a town office thereby vacates such office. 

17. When the office of treasurer or collector of taxes 
is vacant by reason of death, removal, or other cause, or 
when the treasurer or collector is prevented from perform- 
ing the duties of his office, the selectmen of the town may 
by writing under their hands appoint a treasurer or col- 
lector pro tempore, who shall be sworn and give bonds in 
like manner as treasurers and collectors chosen by towns, 
and hold his office until another is chosen. 8 

18. "Removal " here means a removal from town. 4 

19. It is not necessary that the limitation " until another is chosen " 
be expressed in the appointment. 5 

20. When a collector fails to give the bond required by 
section seventy-two of chapter eighteen of the General 
Statutes, the selectmen may appoint another collector in 
the manner and subject to the provisions set forth in sec- 
tion forty-two in said chapter. 6 

21. Whenever a vacancy occurs in the office of highway 
surveyor, fence- viewer, constable, or field driver, in any 

1 Gen. Stats, ch. 18, § 39. * Barre v. Greenwich, 1 Pick. 134. 

2 Hays v. Drake, 6 Grav, 387. 5 Blackstone v. Tuft, 4 Gray, 250. 
a Gen. Stats, ch. 18, §§ 40-42. 6 stats. 1865, ch. 234. 



60 TOWN AND PARISH OFFICER. 

town, the selectmen thereof may, in their discretion, ap- 
point some suitable person to fill the vacancy. 1 

22. When a vacancy occurs in a town office by reason 
of the non-acceptance, death, removal, insanity, or other 
disability of a person chosen thereto, or by reason of a 
failure to elect, the town may fill such vacancy by a new 
choice at any legal meeting. 

23. No person shall be obliged to serve in the same 
town office two years successively ; and no person in com- 
mission for any office of this state or of the United States, 
or who is a minister of the gospel, or a member of the 
council, senate, or house of representatives, or an engine- 
man or member of a fire department, or who has been a 
constable or collector of taxes of a town within seven 
} r ears next preceding, shall be obliged to accept the office 
of constable. 2 

24. Any town in this commonwealth which shall have 
accepted the provisions of this act (this and the four fol- 
lowing sections) in regard to selectmen at any annual 
meeting thereof, may, at such or any annual meeting there- 
after, elect its selectmen for the period of three years, in 
the following manner, namely : if the selectmen be three 
in number, the inhabitants may elect one person for the 
period of one year, one person for two years, and one per- 
son for three years ; and thereafter at each annual meeting 
may elect one selectman to serve for three years, If the 
selectmen be five in number, then they may elect one per- 
son for a period of one year, two persons for two years, 
and two persons for three years ; and thereafter, at each 
annual meeting, they may elect one or two selectmen, as 
the term of office of one or two may expire in that year, to 
serve for three years. If the selectmen be seven in num- 
ber, then they may elect two persons for a period of one 
year, two persons for two years, and three persons for 
three years ; and at each annual meeting thereafter they 
may elect two or three selectmen as the term of office of 
two or three may expire in that year, to serve for three 

i Stats. 1864, ch. 174. 2 Gen. Stats, ch. 18, §§ 43, 44. 



ELECTION AND APPOINTMENT OF TOWN OFFICERS. 61 

years. If the selectmen be nine in number, then they may 
elect three persons for a period of one year, three persons 
for two years, and three persons for three years ; and at 
each annual meeting thereafter they may elect three per- 
sons to serve for three years. 

25. Any town which shall have accepted the provisions 
of this act, in regard to assessors at any annual meeting 
thereof, ma}' elect at such or any annual meeting there- 
after three or five assessors for the term of three years in 
the manner hereinbefore provided for electing three or five 
selectmen, or it may elect four assessors, two for the period 
of one year, and two for two years ; and at each annual 
meeting thereafter the inhabitants may elect two assessors 
to serve for two }-ears. 

26. If any town votes at any annual meeting thereof to 
increase or diminish the number of its selectmen or assess- 
ors, it may do so by electing or omitting to elect such a 
number at that or any annual meeting thereafter as will 
make the board of the required number with terms of office 
expiring in the manner provided in the first two sections 
hereof: provided, however, that the number shall not be 
diminished in such a manner as will prevent one member 
being elected in every year. 

27. Vacancies in either the board of assessors or of 
selectmen may be filled in the manner now provided by 
law, and the person chosen to fill any vacancy shall hold 
office during the unexpired term of the member whose 
place he fills. 

28. The acceptance of this act by any town may, at any 
subsequent annual meeting thereof, be revoked by such 
town, and thereupon this act shall cease to be operative 
in such town : provided, however, that such a revocation 
shall not affect the term of office of selectmen or assessors 
previously chosen. 1 

i Stats. 1878. ch. 255. 



62 TOWN AND PARISH OFFICER. 



CHAPTER VII. 

GENERAL DUTIES OF TOWN CLERKS. 

1. The town clerk shall record all votes passed at the 
meeting, at which he is elected, and at the other meetings 
held during his continuance in office. 1 

2. This does not include the reports of committees, but only the 
votes passed by the town. Such reports should, however, be put on 
file, so that reference may be made to them, otherwise the record in 
relation to them would be unintelligible. 2 It is competent and proper 
for the town clerk to make a record of his own election and qualifica- 
tion ; and whenever the oath of office is administered to a town 
officer in open town meeting by a justice of the peace in presence of 
the town clerk, the clerk's record of the fact is competent evidence 
of the administration of the oath. 3 

3. He shall administer the oaths of office to all town 
officers who appear before him for that purpose, and shall 
make a record thereof, and of oaths of office taken before 
justices of the peace, of which certificates are filed. 

4. When at a town meeting there is a vacancy in the 
office of town clerk, or he is not present, the selectmen 
shall call npon the qualified voters present to elect a clerk 
pro tempore, in like manner as town clerks are chosen. 
The selectmen shall sort and count the votes and declare 
the election of such clerk, who shall be sworn to discharge 
the duties of said office at snch meeting ; and be subject to 
like penalties for not discharging them as town clerks are 
for neglect of the like duties. 

5. When other duties than those mentioned in the pre- 
ceding section are required to be performed by the town 
clerk, and by reason of death, removal, or other cause, 
there is a vacancy in such office, or such clerk is prevented 

1 Gen. Stats, ch. 18, § 45. 3 Briggs v. Murdock, 13 Pick. 305. 

2 Howard v. Stevens, 3 Allen, 409. 



GENERAL DUTIES OF TOWN CLERKS. 63 

from performing such duties, the selectmen may in writing 
under their hands appoint a clerk for the performance 
thereof, who shall be sworn, and immediately after enter- 
ing upon the duties of his office make a record of such 
election or appointment. 1 

^ 6. The votes in elections for national, state, county, and 
district officers, shall be received, sorted, and counted by 
the selectmen, and by the ward officers, and public declara- 
tion made thereof in open town and ward meetings. The 
names of persons voted for, the number of votes^received 
for each person, and the title of the office for which he is 
proposed, shall be entered in words at length by the town 
and ward clerks in their records. The ward clerks shall forth- 
with deliver to the city clerks certified copies of such records, 
who shall forthwith enter the same in the city records. 

The fourth section of chapter nine of the General Statutes provides 
that the clerks in making their returns of votes for representatives 
to Congress under section fifteen of chapter seven of the General 
Statutes, shall transmit them in envelopes expressing on the outside 
the district in which the votes were given. It would seem that sec- 
tion seventeen instead of fifteen of said chapter was intended, which 
is section seven hereafter. 

7. City and town clerks shall within ten days from the 
day of an election for governor, lieutenant-governor, coun- 
cillors, senators, secretary, treasurer and receiver-general, 
auditor, attorney-general, representatives in congress' 
commissioners of insolvency, sheriffs, registers of probate 
and insolvency, district-attorneys, or clerks of the courts, 
transmit copies of the records of the votes, attested by 
them, certified by the mayor and aldermen or selectmen, 
and sealed up, to the secretary of the commonwealth ; they 
shall in like manner within ten days after an election for 
county treasurer or register of deeds transmit such copies 
of the records of the votes to the county commissioners of 
their several counties ; and within seven days after an 
election for county commissioners transmit such copies of 
the records of the votes to the clerks of the courts for their 

1 Gen. Stats, ch. 18, §§ 46-48. 



64 TOWN AND PARISH OFFICER. 

several counties ; but in Suffolk the return of votes for 
register of deeds shall be made to the board of aldermen 
of Boston, and in Chelsea, North Chelsea, and Winthrop, 
the returns of votes for county commissioners shall be 
made to the clerk of the courts for the county of Middlesex. 
Or within three days after such elections, such clerks ma}' 
deliver such copies, sealed up, to the sheriffs of their 
several counties, who within seven days after receiving 
them shall transmit them to the office of the secretary, and 
to the county commissioners, board of aldermen, and clerks 
of courts, as severally above designated. 1 

It should appear by the certificate that the "return" is a true 
copy of the town record, and the clerk should add to his name the 
designation of his office. 2 

8. Proof that a return of votes was properly directed to 
the person to whom it was required to be transmitted or 
delivered, and mailed within forty-eight hours after closing 
the polls, shall be a bar to any complaint for delinquency. 3 

9. It shall be the duty of the clerk of every city and 
town of this commonwealth, as soon as may be after the 
passage of this act, 4 to make out a full and complete 
record of the names of all the soldiers and officers who 
compose his town's quota of the troops furnished by the 
commonwealth to the United States during the present re- 
bellion, stating the place of residence, the time of enlist- 
ment of each, and the number and designation of his 
regiment and company ; also the names of all who have 
resigned or been discharged, and at what time and for what 
cause ; and all who have died in the service, and stating, 
when practicable, at what time and place and the cause of 
death, whether by disease, accident, or on the field of bat- 
tle ; and the promotions of officers and from the ranks, 
and the date thereof; and the names of all absentees, if 
any ; and all such other facts as may relate strictly to the 
military career of each soldier and officer. 5 

1 Gen. Stats, ch. 7, §§ 15, 17. * March 7, 1863. 

2 Luce v. Mayhew, 13 Gray, 83. 5 Stats. 1863, ch. 65, § 1. 
8 Gen. Stats, ch. 7, § 18. 



GENERAL DUTIES OF TOWN CLERKS. 65 

10. (The foregoing is amended as follows, so that the 
record) shall, as far as practicable, state the time and 
place of birth, names of parents, previous occupation, term 
of enlistment, time of entering the service, and whether 
married or single, of all such soldiers and officers. 

11. The clerk of each city and town shall also keep a 
full and complete record of the names of all seamen and 
officers, residents of such cities and towns, engaged in 
the naval service of the United States, during the present 
rebellion, which record shall, as far as practicable, state 
the time and place of birth, name of parents, the date at 
which he entered such service, his previous occupation, 
whether he was married or single, the vessel or vessels on 
which he served, the battles or kind of service in which he 
was engaged, whether he resigned, or was discharged or 
deserted, and the date of such resignation, discharge, or 
desertion, the cause of such discharge or resignation, his 
promotions, and the dates, occasions, and nature of the 
same ; and, if he died in the service, it shall state the date 
and cause of his death ; and such record shall contain any 
and all such other facts as relate to the naval career of 
such seamen or officers during such rebellion. 

12. The adjutant-general shall prepare suitable blank 
books, in conformity with the requirements of this act, 
with proper blanks for marginal notes, and furnish the 
same to the several cities and towns at cost, on the appli- 
cation of the clerk thereof. 

13. All the expenses incurred in making said records, 
with the cost of the record-books, shall be paid by the 
several cities and towns, and the records, when completed, 
shall be deposited and kept in the city and town clerk's 
office. 1 

14. City and town clerks, upon pajonent of their fees, 
shall record all mortgages of personal property delivered 
to them, in books kept for the purpose, noting therein, 
and on each mortgage, the time it is received ; and such 
mortgages shall be considered as recorded at the time 

1 Stats. 1863, ch. 229, §§ 1-4. 
5 



66 TOWN AND PARISH OFFICER. 

when left for the purpose in the clerk's office. The fees 
for recording, and all other services relating thereto, shall 
be the same as are allowed to registers of deeds, for like 
services. 1 (That is) for entering and recording a deed or 
other paper, certifying the same on the original and index- 
ing it, and for all other duties pertaining thereto, twenty- 
five cents ; and if it contains more than one page, at the 
rate of twenty cents for each page after the first ; to be 
paid when the instrument is left for record : 

For all copies, at the rate of twenty cents a page : 2 
They shall also record notices to foreclose, with the affidavits of 
service, and notices to pledgers of property of intention to foreclose, 
with affidavits of service, and notices of liens on ships. 3 

15. Persons intending to be joined in marriage shall, 
before their marriage, cause notice thereof to be entered 
in the office of the clerk or registrar of the city or town in 
which they respectively dwell, if within the state. If 
there is no such clerk or registrar in the place of their 
residence, the entry shall be made in an adjoining city or 
town. 4 

Persons living without the commonwealth, and intend- 
ing to be joined in marriage within the commonwealth, 
shall, before their marriage, cause notice of their intention 
to be entered in the office of the clerk or registrar of the 
city or town in which they propose to have the marriage 
solemnized ; and no marriage between such parties shall 
be solemnized until they shall have delivered to the justice 
of the peace or minister in whose presence the marriage is 
to be contracted, a certificate from such clerk or registrar, 
specifying the time when notice of the intention of mar- 
riage was entered with him, together with all the facts in 
relation to the marriage required by law to be ascertained 
and recorded, except those respecting the person by whom 
the marriage is to be solemnized. 5 

16. The clerk or registrar shall deliver to the parties a 

1 Gen. Stats, ch. 151, § 3. 4 Gen. Stats, ch. 106, § 7. 

2 Gen. Stats, ch. 157, § 12. 5 stats. 1867, ch. 58. 
8 Gen. Stats, ch. 151, §§ 7, 9, 13. 



GENERAL DUTIES OF TOWN CLERKS. 67 

certificate under his hand, specifying the time when notice 
of the intention of marriage was entered with him, to- 
gether with all facts in relation to the marriage required 
bylaw to be ascertained and recorded, except those respect- 
ing the person by whom the marriage is to be solemnized. 
Such certificate shall be delivered to the minister or magis- 
trate in whose presence the marriage is to be contracted, 
before he proceeds to solemnize the same. 

17. If a clerk or registrar issues such certificate to a 
male under the age of twenty-one years, or a female under 
the age of eighteen years, having reasonable cause to 
suppose the person to be under such age, except upon the 
application or consent in writing of the parent, master, or 
guardian of such person, he shall forfeit a sum not exceed- 
ing one hundred dollars ; but if there is no parent, mas- 
ter, or guardian in this state competent to act, a certificate 
may be issued without such application or consent. 

18. The clerk or registrar may require of any person 
applying for such certificate an affidavit sworn to before a 
justice of the peace for the county where the application is 
made, setting forth the age of the parties ; which affidavit 
shall be sufficient proof of age to authorize the issuing of 
the certificate. 

19. Whoever, applying for such certificate, wilfully 
makes a false statement in relation to the age or residence, 
parent, master, or guardian of either of the parties in- 
tending marriage, shall forfeit a sum not exceeding two 
hundred dollars. 

* 20. When a marriage is solemnized in another state, 
between parties living in this state, and they return to 
dwell here, they shall, within seven days after their return, 
file with the clerk or registrar of the city or town where 
either of them lived at the time a certificate or declaration 
of their marriage, including the facts concerning mar- 
riages required by law, and for every neglect they shaU 
forfeit ten dollars. 1 

21. For entering notice of an intention of marriage and 
1 Gen. Stats, ch. 106, §§ 8-12. 



68 TOWN AND PARISH OFFICER. 

issuing the certificate thereof, and for entering the certifi- 
cate of marriage filed by persons married out of the state, 
fifty cents, to be paid by the parties : 

For a certificate of a birth or death, ten cents : 
For copies of town records and other documents fur- 
nished to any person at his request, if containing less than 
one page, ten cents, and if more, at the rate of twelve 
cents a page. 1 (And a page means two hundred and 
twenty-four words.) 2 

22. Whoever finds lost money or goods of the value of three dol- 
lars or more, the owner whereof is unknown, shall within seven 
days give notice thereof in writing to the town clerk, and pay him 
twenty-five. cents for making an entry thereof in a book to be kept 
for* that purpose ; and whoever takes up a stray beast shall cause 
to be entered with the town clerk in a book kept for that purpose 
a notice thereof, containing a description of the color and natural and 
artificial marks of the beast. 

Every finder of lost goods or stray beasts of the value of ten dol- 
lars or more shall also within two months, and before any use is 
made of the same, procure from the city or town clerk, or from a 
justice of the peace, a warrant directed to two disinterested persons, 
to be appointed by the clerk or justice, and returnable into said clerk's 
office in seven days from the date, to appraise the same at their true 
value, upon oath to be administered by the clerk or justice. 

If no owner appears within one year, the lost money or goods 
shall remain to the finder, he paying to the treasurer of the city or 
town one half of the value thereof according to said appraisement 
(all lawful charges being first deducted), and upon his neglect or 
refusal to pay the same it shall be recovered by the city or town 
treasurer. 3 

23. Whenever the commissioners on inland fisheries shall deter- 
mine to occupy and improve a pond, among other duties, they shal^ 
file a notice of such purpose in the office of the town clerk of the 
town or towns in which such pond is located. 4 

24. It shall be the duty of the city or town clerk of any 
city or town which now is, or hereafter maybe, authorized 
to subscribe for the stock of any railroad company, or to 
loan its credit or grant aid to the same, to transmit to the 

1 Gen. Stats, ch. 157, § 9. owner of lost money, goods, or beasts, 

2 Gen. Stats, ch. 157, § 15. see ch. 79 Gen. Stats. 

3 Gen. Stats, ch. 79. For other 4 stats. 1876, ch. 62. 
duties of the finder and rights of the 



GENERAL DUTIES OF TOWN CLERKS. 69 

secretary of the commonwealth and to the board of rail- 
road commissioners a certified copy of any vote of such 
city or town, under such authorit} r , within thirty days from 
the day on which said vote shall be taken ; and also within 
sixty days from the passage of the act (March 8, 1870) 
to transmit a certified copy of any vote heretofore passed 
by such city or town under such authority, unless the same 
has already been transmitted to the secretary as aforesaid ; 
and any city or town clerk who shall neglect to comply 
with the requirements of this act shall be liable to a fine 
of not less than five and not more than fifty dollars. 1 

25. When an attachment is made of articles of personal 
estate which by reason of their bulk or other cause cannot 
be immediately removed, a certified copy of the writ (with- 
out the declaration) , and of the return of the attachment, 
may at any time within three days thereafter be deposited 
in the office of the clerk of the city or town in which it is 
made ; and such attachment shall be equally valid and 
effectual as if the articles had been retained in the posses- 
sion and custody of the officer. 

26. The clerk shall receive and file all such copies, not- 
ing thereon the time when received, and keep them safely 
in his office, and also enter a note thereof, in the order in 
which they are received, in the books kept for recording 
mortgages of personal property ; which entr}- shall contain 
the names of the parties to the suit and the date of the 
entry. The clerk's fee for this service shall be twenty-five 
cents, to be paid by the officer and included in his charge 
for the service of the writ. 2 

i Stats. 1870, ch. 64. 2 Gen. Stats, ch. 123, §§ 57, 58. 



70 TOWN AND PARISH OFFICER. 



CHAPTER VIII. 

GENERAL POWERS AND DUTIES OF SELECTMEN. 

1. Every person elected selectman, who enters upon the 
performance of his duties before taking the oath of office, 
shall forfeit for each offence a sum not exceeding one 
hundred dollars. 

2. The selectmen shall be assessors of taxes and over- 
seers of the poor in towns where other persons are not 
specially chosen to those offices, and when acting as assess- 
ors they shall take the oath required of assessors. 1 

3. " The powers and duties of selectmen are not very fully defined 
by statute. Many of the acts usually performed by them in behalf 
of towns, and which are recognized as within their appropriate sphere, 
have their origin and foundation in long continued usage. The man- 
agement of the prudential affairs of towns necessarily requires the 
exercise of a large discretion, and it would be quite impossible by 
positive enactment to place definite limits to the powers and duties 
of selectmen to whom the direction and control of such affairs are 
intrusted. Speaking generally, it may be said that they are agents 
to take the general superintendence of the business of a town ; to 
supervise the doings of subordinate agents, and the disbursement of 
moneys appropriated by vote of the town, to take care of its property 
and perform other similar duties. But they are not general agents. 
They are not clothed with the general power of the corporate body 
for which they act. They can only exercise such powers and per- 
form such duties as are necessarily and properly incident to the 
special and limited authority conferred on them by their office. They 
are special agents empowered to do only such acts as are required 
to meet the exigencies of ordinary town business." 2 They are not 
authorized to institute or defend suits where the town is a party with- 
out special power given by the town. 3 Nor are they authorized by 
virtue of their office merely to make a contract, in behalf of a town, 
for the hiring of a building for the purpose of holding town meet- 
ings in it. 4 

i Gen. Stats, ch. 18, §§ 49, 50. 3 Walpole v. Gray, 11 Allen, 149. 

2 Smith v. Cheshire, 13 Gray, 319. * Goff v. Rehoboth, 12 Met. 26. 



GENERAL POWERS AND DUTIES OF SELECTMEN. 71 

4. The selectmen of each town shall annually in March 
or April appoint the following town officers, unless the 
inhabitants at their annual meeting choose them : — 

One sealer of weights and measures, and as many more 
as the inhabitants at their annual meeting determine, and 
they may also appoint a gauger of liquid measures ; and 
the selectmen may at any time remove such sealers or 
gaugers, and appoint others in their places : 

One measurer of wood and bark, and as many more as 
the inhabitants at their annual meeting determine : 

And in ever}' town which has town scales for the weigh- 
ing of hay, one or more persons to have the superinten- 
dence thereof. 

5. They may at any time appoint police officers, with 
all or any of the powers of constables, except the power 
of serving and executing civil process, who shall hold their 
offices during the pleasure of the selectmen by whom they 
are appointed. 1 

Whenever a vacancy occurs in the office of highway sur- 
veyor, fence-viewer, constable, or field driver, in any town, 
the selectmen thereof may, in their discretion, appoint 
some suitable person to fill the vacancy. 2 

6. The mayor and aldermen of any city, and the select- 
men of any town, may make such rules and regulations in 
relation to the passage of carriages, wagons, carts, trucks, 
sleds, sleighs, horse-cars, or other vehicles, or to the use of 
sleds or other vehicles for coasting in and through the 
streets or public ways of such city or town as they shall 
deem necessary for the public safety or convenience, with 
penalties for violations thereof, not exceeding twenty dol- 
lars for one offence. 3 

7. The mayor and aldermen or selectmen of any city or 
town where boilers and heavy machine^ are sold shall 
appoint one or more persons, not engaged in the manufac- 
ture or sale thereof, to be weighers of boilers and heavy 
machinery, who shall be sworn to the faithful discharge of 

i Gen. Stats, ch. 18, §§ 37, 38. » Stats. 1875, ch. 136. 

2 Stats. 1864, ch. 174. 



72 TOWN AND PARISH OFFICER. 

their duties, and shall receive such fees as may be ordered 
by the board appointing them, which shall be paid by the 
seller, and shall be removable at the pleasure of the ap- 
pointing power. 1 

8. There shall be a perambulation of town lines, and 
they shall be run and the marks renewed, once in every 
five years, bj- two or more of the selectmen of each town, 
or such substitutes as they in writing appoint for that pur- 
pose. After every such renewal the proceedings shall be 
recorded in the records of the respective towns. 

9. Previously to a perambulation, the selectmen of the 
most ancient of the contiguous towns shall give ten days' 
notice, in writing, to the selectmen of the adjoining town, 
of the time and place of meeting for such perambulation ; 
and selectmen who neglect to give such notice, or to attend 
either personally or by their substitute, shall severally for- 
feit twenty dollars, to be recovered on complaint to the use 
of the commonwealth, or by action of tort to the use of 
the town whose selectmen perform their duty. 

10. The selectmen of the contiguous towns shall erect 
at the joint and equal expense of such towns permanent 
monuments to designate their respective boundary lines at 
every angle thereof, except where such lines are bounded 
by the ocean or some permanent stream of water. The 
monuments shall be of stone, well set in and at least four 
feet high from the surface of the ground ; and the initial 
letter of the respective names of such contiguous towns 
shall be plainly and legibly cut thereon ; but it shall not 
be necessary to erect a new monument in a place where a 
permanent stone monument two feet in height above the 
surface of the ground already exists. 

11. The selectmen of towns bordering on another state, 
where the lines between the states are settled and estab- 
lished, shall once in every five years give notice to the 
selectmen or other proper municipal officers of such towns 
in the other state as adjoin their towns, of their intention 
to perambulate the lines between their adjoining towns. 

i Stats. 1863, ch. 173. 



GENERAL POWERS AND DUTIES OF SELECTMEN. 73 

Where such state lines are in dispute, the perambulations 
shall be made once in every five years after the lines are 
settled and established. If such notice and proposal are 
accepted b} r the officers to whom they are made, a peram- 
bulation shall be made in the same manner as between 
towns in this state. No boundary erected by authority of 
this state and an adjoining state shall be removed by such 
selectmen or other municipal officers. . 

12. A selectman who refuses or neglects to perform 
any duty required of him by the three preceding sections 
shall forfeit twenty dollars to the use of the common- 
wealth. 1 

13. It shall be the duty of the selectmen of the several towns in 
this commonwealth to cause a stone monument with the initials of 
the name of the towns engraved thereon, to be placed on town lines 
wherever a highway crosses said lines, the expense of which shall be 
paid equally by the adjoining towns. 2 

14. The mayor and aldermen or selectmen of any city 
or town, when in their opinion the public good requires 
it, may offer a suitable reward, to be paid by such city or 
town, not exceeding five hundred dollars in one case, to 
any person who in consequence of such offer secures any 
person charged with a capital crime or other high crime or 
misdemeanor committed in such place ; and such reward 
shall be paid by the treasurer upon the warrant of the 
mayor and aldermen or selectmen. 8 

Under this section it has been held that the person for whose 
arrest a reward is offered must have been charged by a complaint or 
indictment. 4 

15. When more than one claimant appears and applies 
for the payment of such reward, the mayor and aldermen 
or selectmen shall determine to whom the same shall be 
paid, and if to more than one person, in what proportion 
to each ; and their determination shall be final and con- 
clusive. 5 

1 Gen. Stats, ch. 18, §§ 3-7. « Day v. Otis, 6 Allen, 477. 

2 Stats. 1861, ch. 84. 5 Gen. Stats, ch. 170, § 8. 
8 Gen. Stats, ch. 170, § 7. 



74 TOWN AND PARISH OFFICER. 

16. The mayor and aldermen of any city, or the select- 
men of any town, when in their opinion the public good 
requires it, may offer a suitable reward, to be paid by such 
city or town, not exceeding five hundred dollars in one 
case, to any person who, in consequence of such offer, 
detects and secures any person who has committed a 
capital crime, or other high crime or misdemeanor in such 
place ; and such reward shall be paid by the treasurer 
upon the warrant of the mayor and aldermen or select- 
men. 

17. When more than one claimant appears and applies 
for the pa} T ment of such reward, the same shall be deter- 
mined in the manner provided in the eighth section of the 
one hundred and seventieth chapter of the General Stat- 
utes. (Section fifteen above.) * 

18. There is no statute provision in reference to the amount of 
compensation selectmen shall receive for the performance of their 
general duties, and it is therefore left to the town to determine the 
same. 

In addition to the management of the prudential affairs and gen- 
eral superintendence of the business of a town not imposed by law 
upon particular officers, selectmen are authorized and required by 
statute to perform specific duties in reference to very many subjects. 
These are treated of in connection with those subjects. 

1 Stats. 1866, ch. 9. 



ASSESSORS OF TAXES. 75 



CHAPTER IX. 

ASSESSORS OF TAXES. 

1. The assessors' oath of office shall be in substance as 
follows : — 

You, being chosen assessors [or an assessor], for the town of 

for the year ensuing, do swear that you will impartially, 

according to your best skill and judgment, assess and apportion all 

such taxes as you are during that time directed to assess, and that 

you will faithfully discharge all other duties of said office. 

2. Assistant assessors, when chosen, shall be sworn, 
and shall in their respective wards or districts assist the 
assessors in taking a list of the ratable polls, in estimating 
the value of the real and personal estate in said wards or 
districts, and in making out lists of persons qualified to 
vote at elections. 

3. If a person chosen assessor, having notice of his 
election, neglects to take the oath of office, he shall forfeit 
a sum not exceeding fifty dollars. 1 

4. The secretary of the commonwealth shall furnish to 
each of the cities and towns in the state, on or before the 
first day of May in each year, suitable blank books for the 
use of the assessors of said cities and towns in the assess- 
ment of taxes, which books shall contain blank columns 
numbered from one to twenty-seven, inclusive, with uni- 
form headings for a valuation list, and blank tables for 
aggregates, in the following form : — 

1 Gen. Stats, ch. 18, §§ 51-53. For mode of election, see Election and 
Appointment of Town Officers. 



76 



TOWN AND PARISH OFFICER. 



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ASSESSORS OF TAXES. 77 

5. The assessors in each of the several cities and towns 
shall enter in the books furnished in accordance with the 
provisions of the preceding section the valuation and 
assessment of the polls and estate of the inhabitants 
assessed, in the following order : — 

In column number one. — The names of the inhabitants 
or parties assessed for polls or estate. 

In column number two. — The number of polls for 
which any person named in the preceding column is tax- 
able. 

In column number three. — Total amount of cash tax on 
polls. 

In column number four. — The amount of each person's 
whole stock in trade, including all goods, wares, and mer- 
chandise, at home or abroad, of ratable estate, whether 
paid for or otherwise. 

In column number Jive. — A description of all ratable 
cash assets : viz., amount of money at interest more than 
the person assessed pays interest for, including public 
securities ; the amount of money on hand, including de- 
posits in an}' bank or in any savings bank which is not 
exempted hy law from taxation ; the number of shares of 
stock which are taxable, with the name of the corporation, 
in any bank, railroad, insurance, manufacturing, or other 
incorporated compan}\ 

In column number six. — The true ratable value of the 
several items enumerated in the preceding column, placed 
opposite the description of said property or shares. 

In column number seven. — The true value of machiner} r 
used in all kinds of manufacturing establishments, including 
steam-engines, &c, the value of such machinery to be 
entered opposite the description of the building in which 
it is used. 

In columns number eight and nine. — The whole number 
of taxable live stock, including horses, mules, asses, oxen, 
cows, steers, heifers, sheep, and swine ; each kind to be 
stated separately, with the value affixed to each. 

In columns number ten and eleven. — Description of all 



78 TOWN AND PARISH OFFICER. 

other ratable personal estate not before enumerated, such 
as carriages, income, plate, furniture, tons of vessels, &c, 
with the true value of the same. 

In column number twelve. — The aggregate of each per- 
son's ratable personal estate. 

In column number thirteen. — The total tax on each 
person's personal estate. 

In column number fourteen. — Buildings of all kinds shall 
be described in the following order : — 

Dwelling-houses ; barns ; shops of all kinds, naming 
their uses ; stores ; warehouses ; distilhouses ; breweries ; 
tanneries and other manufactories of leather ; ropewalks ; 
grist-mills ; saw-mills ; steam and other mills not above 
enumerated ; cotton factories, with the number of spindles 
and looms used in the same ; woollen factories, with the 
number of sets of cards used in the same ; linen factories, 
with the number of spindles and looms ; print works ; 
bleacheries ; gas works ; paper mills ; card factories ; boot 
and shoe factories ; India rubber factories ; carriage and 
car factories ; piano-forte and musical instrument factories ; 
sewing-machine factories ; chair, pail, tub, and other 
wooden-ware factories ; oil factories ; glass factories ; all 
kinds of iron and brass works, and other buildings not 
above named. 

In column number fifteen. — True value of buildings 
enumerated in the preceding column placed opposite the 
description of the same, including water-wheels ; such 
value to be exclusive of land and water-power and of the 
machinery used in said buildings. 

In columns number sixteen, seventeen, and eighteen. — A 
description by name or otherwise of each and every lot of 
land assessed, the same placed opposite the name of the 
person or party to whom it is taxable, with the number of 
acres or feet in each lot, the number of quartz sand beds, 
of stone quarries and ore beds, and the true value thereof. 

In columns number nineteen and twenty. — The number 
of superficial feet of wharf, and the total value of the 
same. 



ASSESSORS OF TAXES. 79 

In column number twenty-one, — The aggregate value of 
each person's taxable real estate. 

In column number twenty-two, — The total tax on real 
estate. 

In column number twenty-three, — The aggregate cash tax 
assessed to each person on polls, personal and real estate. 

In columns number twenty-four, twenty-Jive, twenty-six, and 
twenty-seven. — The amount assessed for highway tax ; on 
polls ; on personal estate ; on real estate ; and the aggre- 
gate of the same. 

6. The assessors shall fill up the table of aggregates by 
an enumeration of the necessary items included in the 
lists of valuation and assessments required by the pre- 
ceding section, and shall, on or before the first day of 
October in each of the first four years of each decade, 
deposit in the office of the secretary of the commonwealth, 
an attested copy of the same, containing : — 

First, — The total number of polls. 

Second, — The total tax on polls. 

Third, — The total value of 1 personal estate. 

Fourth, — The total value of 1 real estate. 

Fifth. — The total tax for state, county, and town pur- 
poses, including highway tax. 

Sixth, — The rate per cent of total tax. 

Seventh, — The total valuation of the city or town. 

Eighth, — Total number of dwelling-houses assessed. 

Ninth, — Total number of horses assessed. 

Tenth. — Total number of cows assessed. 

Eleventh. — Total number of sheep assessed. 

Twelfth, — The total number of acres of land assessed 
in the city or town. 

The assessors shall make similar returns in the first four 
years of the last half of each decade ; and in every fifth 
and tenth year of each decade, they shall deposit in the 
office of the secretary of the commonwealth, on or before 
the first day of October, a certified copy, under oath, of 
the assessors' books of those years ; and said books thus 

1 Stats. 1861, ch. 215. 



80 TOWN AND PARISH OFFICER. 

deposited shall contain an aggregate sheet properly filled 
in accordance with the provisions of this act, which shall 
be in like manner certified by the assessors ; and in every 
fifth and tenth year of each decade, the secretary shall fur- 
nish duplicate copies of blank books to the cities and towns 
for the foregoing purpose : provided, however, that in the 
case of the city of Boston the returns, required by this 
section to be deposited in the office of the secretary, may 
be thus deposited on or before the first day of November, 
in the several years respectively. 

7. The secretary of the commonwealth shall cause to be 
printed, and bound in the books to be furnished for the use 
of the assessors, a copy of this act, and such certificates 
as are required by the same and by the General Statutes, to 
be signed by the assessors, together with such explanatory 
notes as may by him be deemed expedient, for the purpose 
of securing uniformity of returns under the several head- 
ings ; and he shall compile and cause to be printed an- 
nually, for the use of the legislature, the aggregate returns 
from the cities and towns in the commonwealth arranged 
by counties, so as to exhibit the total valuation of the 
towns, cities, counties, and state. 

8. If the assessors of any city or town shall neglect to 
comply with the requirements of the second or third sec- 
tion of this act (sections five and six above) , each assessor 
so neglecting shall forfeit a sum not exceeding two hundred 
dollars. 1 

9. Whenever it shall have been ascertained hj the asses- 
sors of any city or town that the aggregate values of their 
city or town, respectively, have been diminished since the 
first day of May of the preceding year, they shall return 
with the table of aggregates, or books, which they are re- 
quired by the act of the year one thousand eight hundred 
and sixty-one, entitled " An act to secure a uniform 
description and appraisal of estates in the commonwealth, 
for the purposes of taxation " (being the five preceding sec- 
tions) , and the several acts in addition thereto, to deposit 

i Stats. 1831, ch. 167, §§ 1-5. 



ASSESSORS OF TAXES. 81 

in the office of the secretary, a statement in writing, under 
oath, of the causes which, in their opinion, have produced 
such diminution. 

10. If the assessors of any city or town shall neglect to 
comply with the requirements of this act (the preceding 
section), each assessor so neglecting shall forfeit a sum 
not exceeding two hundred dollars. 1 

11. The assessors of the several cities and towns shall, 
on or before the first day of September next, and every 
third year thereafter, return to the secretary of the com- 
monwealth the number and names of the several industrial 
corporations, and the number and names of the banks and 
insurance companies established in their respective cities 
and towns, with the amount of capital stock owned by 
each, reckoned at the par value thereof, the number of 
shares issued, and the amount for which the real estate 
and machinery of manufacturing corporations are taxed in 
such cities and towns. Also, the number and names of 
savings banks in such cities and towns, and the whole 
amount of deposits in each. Also, the number of shares 
in industrial corporations, railroads, banks, insurance com- 
panies, and steamship companies, specifjing the number 
of shares in each compaii}' which are taxed in such cities 
and towns, and the value of such shares as they stand 
upon the assessors' books. Also, the amount of deposits 
in any savings banks, specifying the name thereof, taxed 
in their respective cities and towns. 

12. The assessors of each city and town shall, at the 
same time, return to the secretary the name of any other 
association or corporation organized for loaning money, 
and established in their respective cities and towns, with 
the amount of their capital stock and deposits, if known, 
and the amount for which they are taxed, for the year 
eighteen hundred and sixty-one, and for every third year 
thereafter. * 

13. The secretary of the commonwealth shall, on or 
before the first day of June next, and on or before the first 

i Stats. 1864, ch. 210, §§ 3, 4. 
6 



82 TOWN AND PARISH OFFICER. 

day of June of every third year thereafter, transmit to the 
several cities and towns suitable blank forms, to enable 
the several assessors to make the returns prescribed in 
the foregoing sections of this act. 

14. The secretary shall make a digest of the returns of 
the assessors, made to him in confornrhy with the fore- 
going provisions of this act, in convenient form, for the 
use of the legislature, and shall cause the same to be 
printed on or before the first day of January next, and on 
or before the first day of January of every third year there- 
after ; and in addition to the number provided for the legis- 
lature, shall cause one copy of the same to be sent to the 
clerk of each city and town in this commonwealth. 

15. If any agent or assessor wilfully refuses or neglects 
to perform any duty required of him by this act (being 
four preceding sections) , he shall forfeit a sum not exceed- 
ing three hundred dollars. 1 

16. The assessors of the several cities and towns shall 
annually, on or before the first Monday of August, return 
to the tax commissioner (treasurer of the commonwealth) , 
hereinafter named, the names of all corporations, except 
banks of issue and deposit, having a capital stock divided 
into shares, chartered by this commonwealth or organized 
under the general laws, for purposes of business or profit, 
and established in their respective cities and towns, or 
owning real estate therein, and a statement in detail of 
the works, structures, real estate, and machinery owned 
by each of said corporations, and situated in such cit} r or 
town, with the value thereof, on the first day of May pre- 
ceding, and the amount at which the same is assessed in 
said city or town for the then current year. They shall 
also, at the same time, return to said tax commissioner 
the amount of taxes laid, or voted to be laid, within said 
city or town, for the then current year, for state, county, 
and town purposes, including highway taxes. 2 

The assessors of each town shall in each year, at the time of mak- 
ing the returns required by this section, return to the tax commis- 

1 Stats. 1861, ch. 171, §§ 1-5. 2 stats. 1865, ch. 283, § 1. 



ASSESSORS OF TAXES. 83 

sioner a statement showing the whole number of steam-boilers located 
in their respective towns on the first day of May then next preceding ; 
by whom and when built, and the aggregate estimated amount of 
horse power which such boilers are capable of furnishing. Such 
return shall also state the number of accidents causing permanent 
injuries to persons which have arisen from the use of such boilers 
during the year, with the causes thereof, as far as may be ascertained 
by the assessors. The tax commissioner shall in due season forward 
to the assessors blanks suitable for making these returns. 1 

The provisions of this section are extended to apply, so far as 
applicable, to companies, copartnerships, and other associations hav- 
ing a location or place of business within this commonwealth, in 
which the beneficial interest is held in shares which are assignable 
without consent of the other associates specifically authorizing such 
transfer. 

Every company, copartnership, or association to be taxed by this 
act shall, when required, submit its books to the inspection of the tax 
commissioner and tax assessors of the city or town in which the same 
is located ; and its treasurer, agent, trustee, superintendent, and busi- 
ness manager shall be subject to examination on oath in regard to all 
matters affecting the taxation of the same. 2 

17. If the assessors of any city or town shall neglect to 
comply with the requirements of this act (preceding sec- 
tion) , each assessor so neglecting shall forfeit the sum of 
one hundred dollars. 3 

18. When the collector of taxes of any city or town in 
this commonwealth shall become satisfied that any poll tax, 
or tax upon personal property, or any portion of said tax, 
which has been committed to him or to any of his pre- 
decessors in office, for collection, cannot be collected by 
reason of the death, absence, poverty, insolvency, bank- 
ruptcy, or other inability to pay of the person or persons to 
whom such tax has been assessed, he shall notify the asses- 
sors of taxes of the said city or town thereof in writing, 
stating the reason why such tax cannot be collected, and 
verifying the same by oath. It shall then be lawful for 
the assessors of such city or town, after due inquiry into 
the circumstances, to make abatement of such tax or any 
part thereof. Upon such abatement being made, the said 

i Stats. 1873, ch. 321. 3 stats. 1865, ch. 283, § 14. 

2 Stats. 1878, ch. 275. 



84 TOWN AND PARISH OFFICER. 

assessors shall certify the same in writing to the collector 
of taxes ; and said certificate shall discharge the collector 
from further obligation to collect the tax so abated. But 
no poll tax shall be abated under the provisions of this 
act, within two } T ears from the time of its assessment. 1 

When any person, on or before the first day of October, in any 
year, gives notice in writing, accompanied by satisfactory evidence, to 
the assessors of a city or town, that he was on the first day of May 
of that year an inhabitant thereof, and liable to pay a poll tax, and 
furnishes under oath a true list of his polls and estate, both real and 
personal, not exempt from taxation, the assessors shall assess him 
for his polls and estate ; but such assessment shall be subject to the 
provisions of chapter one hundred and twenty-one of the acts of the 
year one thousand eight hundred and sixty-five, and the assessors shall, 
on or before the fifth day of October, deposit with the clerk of the 
city or town a list of the persons so assessed. The taxes so assessed 
shall be entered in the tax list of the collector of the city or town, 
and he shall collect and pay over the same in the manner specified 
in his warrant. 2 

1 Stats. 1878, ch. 77. By accident, in that section the first 

2 Stats. 1874, ch. 376, § 6 ; Stats, date is September 15th instead of 
1877, ch. 207. This section is also October 1st, and October 1st instead 
inserted in Chapter IV., section six. of October 5th. 



ASSESSMENT OF TAXES. 85 



CHAPTER X. 

ASSESSMENT OF TAXES. 

1. When a state tax is to be assessed, the treasurer 
shall send his warrants for the assessing thereof by mail 
to the assessors of the several cities and towns in the com- 
monwealth. 1 

2. The assessors shall assess state taxes for which they 
receive warrants from the treasurer, according to the rules 
prescribed in this chapter. They shall in like manner 
assess all count}' taxes which are duly certified to them, 
all city or town taxes voted by their places, and all taxes 
duly voted and certified by school districts therein. 

3. If the assessors of a city or town neglect to obey a 
warrant so received from the treasurer, or to assess such a 
county, town, or district tax, each assessor so neglecting 
shall forfeit a sum not exceeding two hundred dollars ; and 
the commissioners in the respective counties shall forthwith 
appoint other suitable persons to assess such tax, accord- 
ing to the warrant of the treasurer. The persons so ap- 
pointed shall take the same oath, perform the same duties, 
and be liable to the same penalties, as are provided in the 
case of assessors of towns. 

4. If within five months after the receipt of a warrant 
from the state treasurer, or a certificate from the county 
commissioners requiring the assessment of a tax, the same 
is not assessed and certified as the law requires, the 
amount of the tax may be recovered of the city or town 
where the neglect occurs, in an action of contract by the 
treasurer of the state or county respectively. 

5. Keepers of taverns and boarding-houses, and masters 
and mistresses of dwelling-houses, shall, upon application 

i Stats. 1867, ch. 166, § 1. 



86 TOWN AND PARISH OFFICER. 

of an assessor in the place where their house is situated, 
give information of the names of all persons residing there- 
in and liable to be assessed for taxes. Every such keeper, 
master, or mistress, refusing to give such information or 
knowingly giving false information, shall forfeit twenty 
dollars for each offence. 

6. Before proceeding to make an assessment, the asses- 
sors shall give seasonable notice thereof to the inhabitants 
of their respective places, at any of their meetings, or by 
posting up in their city or town one or more notifications 
in some public place or places, or by some other sufficient 
manner. Such notice shall require the inhabitants to bring 
in to the assessors, within a time therein specified, true 
lists of all their polls and estates, both real and personal, 
not exempted from taxation. 1 

The assessors of any town, in giving the notice mentioned in this 
section, may or may not require the inhabitants thereof to include 
real estate in their lists of property subject to taxation. Unless such 
requirement is made in said notice, the omission of real estate from 
the list brought in to the assessors shall not deprive the owner of 
such real estate of his right to an abatement of the tax thereon : 
provided, he shall file, with his application to the assessors for abate- 
ment, a list of the real estate on which the same is claimed, with his 
estimate of the fair cash value of each parcel thereof, and shall make 
oath that said list and estimate are true according to his best knowl- 
edge and belief. 2 

7. Whoever shall deliver or disclose to any assessor or 
assistant assessor of taxes, elected or appointed in pursu- 
ance of the laws of this commonwealth, any false or fraud- 
ulent list, return or schedule of property, as and for a true 
list of his estates, real and personal, not exempted from 
taxation, w T ith intent thereby to avoid the lawful assess- 
ment or payment of any tax, or with intent thereby to 
defeat or evade the provisions of law in relation to the 
assessment or payment of taxes, shall be punished by a 
fine not exceeding one thousand dollars, or by imprison- 
ment in jail not exceeding one year. 3 

1 Gen. Stats, ch. 11, §§ 18-22. 3 Stats. 1869, ch. 190. 

2 Stats. 1877, ch. 160, § 1. 



ASSESSMENT OF TAXES. 87 

8. Corporations are required to bring in such lists. 1 But it is not 
intended that such lists should contain an estimated value of the 
property. 2 

9. The assessors shall in all cases require a person 
bringing in such a list to make oath that the same is true ; 
which oath may be administered by either of the assessors. 

10. The assessors of each place shall at the time ap- 
pointed make a fair cash valuation of all the estate, real 
and personal, subject to taxation therein. 3 

11. They shall receive as true the list brought in by 
each individual according to the provisions of this chapter, 
unless on being thereto required by the assessors, he 
refuses to answer on oath all necessary inquiries as to the 
nature and amount of his property. 4 

They are not to receive as true, under this requirement, any esti- 
mate of value contained in the list, as it is not intended that the list 
should contain such estimate, but to receive as true the description, 
enumeration of articles, and other description of the property. But 
note this when the list is shown to be wrong by the answers of the 
individual to the inquiries of the assessors referred to in the last part 
of the section above. 5 

12. Any person who in any way directly or indirectly 
proposes or agrees to an assessment on any specific or 
limited amount less than he is liable by law to be taxed for, 
with a view or as an inducement to make any particular 
place his residence for the purpose of taxation, shall be 
punished by fine of one thousand dollars ; and any assessor 
guiKy of making or assenting to any such proposal shall be 
subject to a like penalt} T . 

13. They [the assessors] shall ascertain as nearly as 
possible the particulars of the personal estate, and of the 
real estate in possession or occupation, as owner or other- 
wise, of any person who has not brought in such list, and 
make an estimate thereof at its just value, according to 
their best information and belief. 6 

i Otis Company v. Ware, 8 Gray, * Gen. Stats, ch. 11, § 25. 
509. 5 Lincoln v. Worcester. 8 Cush. 55 ; 

2 Newburyport v. County Com- Hall v. County Commissioners, 10 
missioners, 12 Met. 211. Allen, 100. 

3 Gen. Stats, ch. 11, §§ 23, 24. 6 Gen. Stats, ch. 11, §§ 26, 27. 



50 TOWN AND PARISH OFFICER. 

It is sufficient to make a general estimate of each class of prop- 
erty. 1 

14. Such estimate shall be entered in the valuation, and 
shall be conclusive upon all persons who have not season- 
ably brought in lists of their estates, unless they can show 
a reasonable excuse for the omission. 

15. The assessors, when they think it convenient, ma}' 
include in the same assessment their state, county, and 
town taxes, or any two of them. 

16. In the city of Boston, all taxes assessed for city or 
county purposes may be assessed separately, as county 
taxes and as city taxes, or under the denomination of city 
taxes only , as the city council from time to time directs. 
Chelsea, North Chelsea, and Winthrop shall not be taxed 
for county purposes. 2 

17. The assessors shall assess upon the polls, as nearly as may be, 
one sixth part of the whole sum to be raised ; but the whole poll tax 
assessed in one year upon an individual for town, county, and state 
purposes, including highway taxes, shall not exceed two dollars ; and 
the residue of such whole sum shall be apportioned upon property, as 
provided in this chapter. 3 

The omission to comply with this provision renders the whole tax 
illegal. 4 

18. They may add to the amount of a tax to be assessed 
such sum, not exceeding five per cent thereof, as any frac- 
tional divisions of the amount may render convenient in 
the apportionment. 

19. They shall make a list of the valuation and the as- 
sessment thereon, and, before the taxes assessed are com- 
mitted for collection, shall deposit the same, or an attested 
copy thereof, in their office, or, if there is no office, with 
their chairman, for public inspection. 6 

Depositing the list the day before is sufficient. 6 

20. The first part of the list shall exhibit the valuation 
and assessment of the polls and estates of the inhabitants 

1 Tobey v. Wareham, 2 Allen, 594. * Gerry v. Stoneham, 1 Allen, 319. 

2 Gen. Stats, ch. 11, §§ 28-30. 5 Gen." Stats, ch. 11, §§ 32, 33. 

3 Gen. Stats, ch. 11, § 31; Stats. 6 Tobey v. Wareham, 2 Allen, 594. 
1876, ch. 88. 



ASSESSMENT OF TAXES. 89 

assessed ; and shall contain in separate columns the fol- 
lowing particulars, to wit : — 

The names of the inhabitants assessed ; and opposite to 
their names, 

The number of polls. 

The amount of their poll tax. 

The description of their real estate. 

The true value of their real estate. 

The tax assessed on such real estate. 

The description of their personal property. 

The true value of their personal property. 

The tax on their personal property. 

The sum total of each person's tax. 

The second part shall exhibit the valuation and assess- 
ment of the estates of non-resident owners ; and shall 
contain in separate columns the following particulars, to 
wit : — 

The names of the non-resident owners of the property 
assessed, or such description of them as can be given. 

Their places of abode, if known. 

The description of their estate. 

The true value of such estate. 

The tax thereon. 1 

See also in regard to valuation lists, assessors, Chapter X. 

21. The tax list committed to the collectors shall be in 
substance as follows : — 



Names. 



No. of PoUs. 



Poll Tax. 



Tax on 
Real Estate. 



Tax on Personal 
Property. 



Total. 



Time 
when 
paid. 



NON-RESIDENTS. 



Places of abode, if known. 



22. The assessors, or other persons empowered to 
assess the taxes in a city or town, shall, at the close 

i Gen. Stats, ch. 11, § 34. 



90 TOWN AND PARISH OFFICER. 

of said valuation list, subscribe and take the following 
oath: 

" We (the assessors, or mayor and aldermen, as the case may be, 
of ) do hereby solemnly swear that the foregoing 

list is a full and true list of the names of all persons known to us, 
who are liable to taxation in (here insert the name 

of the city or town) during the present year, and that the real and 
personal estate contained in said list, and assessed upon each individ- 
ual in said list, is a full and accurate assessment upon all the prop- 
erty of each individual, liable to taxation, at its full and fair cash 
value, according to our best knowledge and belief." 

23. Any assessor or other person assessing taxes in 
a city or town, who omits to take and subscribe the oath 
prescribed in the preceding section, shall be punished by a 
fine of ten dollars ; but the omission to take and subscribe 
said oath shall not prevent the collection of a tax otherwise 
legally assessed. 

24. The assessors shall, within a reasonable time, com- 
mit said tax list with their warrant to the collector, or if no 
collector is chosen, to a constable, or if there is no consta- 
ble to the sheriff or his deputy, for collection. 1 

25. A warrant without a tax list will not authorize a collector 
to collect by distress, but the two need not be attached together. 3 
Where a warrant is directed to a person as " constable or collector/' 
it is sufficient if he is qualified to act at the time of the delivery of the 
warrant to him though he was not at the time of its date. 3 

26. The warrant shall specify the duties of the collector 
as prescribed by law in the collection of taxes, the times 
when and the persons to whom he shall pay them in, shall 
be substantially in the form heretofore used, and need 
not be under seal. 

27. When a warrant issued for the collection of taxes is 
lost or destroyed, the assessors may issue a new warrant 
therefor, which shall have the same force and effect as the 
original warrant. 

28. Towns at their annual meeting, and city councils of cities 
may allow a discount of such sums as they think expedient to 
persons making voluntary payment of their taxes within such 

1 Gen. Stats, ch. 11, §§ 35-38. 3 Hays v. Drake, 6 Gray, 387. 

2 Barnard v. Graves, 13 Met. 85. 



ASSESSMENT OF TAXES. 91 

periods of time as they prescribe. In such case the collectors 
shall make such discount accordingly. 1 

29. If towns abuse this authority "by making the discounts par- 
tial, the remedy is not by resisting the tax, but should be of a more 
general character. An injunction would seem to be more appropri- 
ate." 2 

30. When such discount is allowed, the assessors, at 
the time of committing their warrant to the collector, 
shall post up in one or more public places within the 
city or town notice of the rates of discount. 

31. A person aggrieved by the taxes assessed upon 
him may apply to the assessors for an abatement thereof ; 
and, if he makes it appear that he is taxed at more than 
his just proportion (or upon an assessment of any of his 
property above its fair cash value) , 3 they shall make a 
reasonable abatement. 4 

32. But assessors cannot make this abatement after their term of 
office has expired. 5 When a person is liable to taxation for personal 
and real estate in a city or town, his sole remedy for an over-taxation 
caused by an excessive valuation of his property, or by including in 
the assessment property of which he is not owner, or for which he is 
not liable to taxation, is by an application to the assessors for an 
abatement ; but this does not apply to the case of one who is taxed in 
a town where he does not reside, upon his poll and personal estate, 6 
and upon petition for abatement, taxes upon the same or other prop- 
erty of the petitioner cannot be increased. 7 

33. If legal costs have accrued before making such 
abatement, the person applying for the abatement shall 
pay the same. 

34. If the assessors refuse to make an abatement to 
a person, he may, within one month thereafter, make com- 
plaint thereof to the county commissioners by filing the 
same with their clerk, and, if upon a hearing it appears 
that the complainant is overrated, the commissioners shall 
make such an abatement as they deem reasonable. 

1 Gen. Stats, ch. 11, §§ 39-41. 6 Osborn v. Danvers, 6 Pick. 98; 

2 Tobey v. Wareham, 2 Allen, 594. Preston v. Boston, 12 Pick. 7; Bates 

3 Stats. 1877, ch. 160, § 2. v. Boston, 5 Cush. 93. 

4 Gen. Stats, ch. 11, §§ 42, 43. 7 Lowell v. County Commissioners, 

5 Cheshire v. Howland, 13 Gray, 3 Allen, 546. 
321. 



92 TOWN AND PARISH OFFICER. 

35. No person shall have an abatement unless he has 
filed with the assessors a list subscribed by him of his 
estate liable to taxation, and made oath that it is full 
and accurate according to his best knowledge and belief. 
When such list is not filed within the time specified by 
the assessors for bringing it in, no complaint from the 
judgment of the assessors shall be sustained b}^ the county 
commissioners, unless they are satisfied that there was 
good cause why such list was not seasonably brought in. 1 

36. This section has been modified by the legislature, as follows : — 

When the assessors of a city or town have given notice 
to the inhabitants thereof to bring in true lists of all their 
polls and estates, not exempt from taxation, in accord- 
ance with the provisions of the twenty-second section of 
the eleventh chapter of the General Statutes, they shall 
not afterwards abate any part of the tax assessed on per- 
sonal estate to any person who did not bring in such list 
within the time specified therefor in such notice, unless 
such tax exceeds by more than fifty per centum the amount 
which would have been assessed to that person on personal 
estate, if he had seasonably brought in said list ; and if 
said tax exceeds by more than fifty per centum the said 
amount, the abatement shall be only of the excess above 
the said fifty per centum : provided, however, that this act 
shall not affect any person who can show a reasonable 
excuse for not seasonably bringing in said fist. 2 

37. The list must be brought to the assessors before the tax is 
assessed. 3 The exhibition to the assessors of a plan of the tax- 
payer's real estate is not the carrying in of a list; nor is a reference 
by oral communication to a former list, carried in two years before. 
Nor is the fact that the assessors are satisfied without a list equiva- 
lent to bringing in a list. 4 But where a corporation brought in a list 
in due season, and the only defect was, that it was not sworn to as a 
full and accurate list until after the time designated for bringing it 
in, because the assessors told the agent he need not swear to it, — the 

1 Gen. Stats, ch. 11, §§ 44-46. 4 Winnisimmet Company v. As- 

2 Stats. 1865, ch. 121. sessors, &c, 6 Cush. 477. 

3 Porter v. County Commissioners 
of Norfolk, 5 Gray, 365. 



ASSESSMENT OF TAXES. 93 

omission was held to be for good cause. In this case, the law was 
complied with in all essential particulars. Not so in the case of 
Winnisimmet Company above, where no list was brought in. 1 

38. The omission to tax any particular person who may be liable, 
does not render the whole tax illegal and void, though in consequence 
others are taxed more than they ought to be, and it seems a second 
tax assessed to correct the error would be illegal and void. 2 

39. No abatement shall be allowed to a person unless 
he makes application therefor within six months after the 
date of his tax bill. 

40. A person having an abatement made shall, if his 
tax has been paid, be reimbursed out of the treasury of 
the city or town to the amount of the abatement allowed, 
together with all charges, except the legal costs provided 
for in section forty- four. 3 

Charges do not include the petitioner's costs in prosecuting his 
petition for abatement, nor interest upon the amount abated which 
had been paid by him under protest. 4 

41. Every person whose tax is abated shall be entitled 
to a certificate thereof from the assessors, or clerk of the 
commissioners, or other proper officer. 5 

42. When an}' person, on or before the (fifteenth day 
of September) 6 in any year, gives notice in writing, ac- 
companied by satisfactory evidence, to the assessors of a 
city or town, that he was on the first da}' of May of that 
year an inhabitant thereof, and liable to pay a poll tax, 
and furnishes under oath a true list of his polls and estate, 
both real and personal, not exempt from taxation, the 
assessors shall assess him for his polls and estate ; but 
such assessment shall be subject to the provisions of chap- 
ter one hundred and twenty-one of the acts of the year 
one thousand eight hundred and sixty-five ; and the asses- 
sors shall, on or before the (first day of October) , 6 de- 
posit with the clerk of the city or town a list of the persons 

1 Lowell v. County Commission- 4 Lowell v. County Commissioners, 
ers, 3 Allen, 546. 3 Allen, 546, 550. 

2 Inglee v. Bosworth, 5 Pick. 498; 5 Gen. Stats, ch. 11, § 49. 
Watson v. Princeton, 4 Met. 601. 6 Stats. 1869, ch. 443. 

3 Gen. Stats, ch. 11, §§ 47, 48. 



94 TOWN AND PARISH OFFICER. 

so assessed. The taxes so assessed shall be entered in the 
tax list of the collector of the city or town, and he shall 
collect and pa}' over the same in the manner specified in 
his warrant. 1 

43. Whenever any person shall make application to the 
assessors of any city or town of this commonwealth to be 
assessed a poll tax for the then current year, and it shall 
appear that such applicant was on the first day of May 
preceding a resident of said city or town, and liable to 
pay a poll tax therein, but was not assessed therefor, and 
that such applicant is, or has been during any portion of 
the two years preceding such application, engaged in the 
military or naval service of the United States, it shall be 
the duty of such assessors forthwith to assess such tax, 
and notify the treasurer of such city or town of the same, 
and the person so assessed shall, upon payment of said 
tax, be entitled to the right to vote in said city or town to 
the -same extent as if his taxes had been assessed and 
paid in the manner heretofore provided by law. 2 

44. The assessors shall not be responsible for the as- 
sessment of a tax in a city, town, parish, religious society, 
(fire district) 3 or school district, for which they are asses- 
sors, when such tax is assessed by them in pursuance of 
a vote for that purpose, certified to them by the clerk or 
other proper officer of such city, town, parish, religious 
society (fire district) , 8 or school district, except for the 
want of integrity and fidelity on their own part. 4 

45. Assessors who act with fidelity and integrity in assessing a 
tax, in pursuance of a vote duly certified to them, are not responsi- 
ble in any form of action for accidentally assessing a person not an 
inhabitant of the town or liable to be taxed. 5 Nor are they liable for 
omitting to tax an individual who is liable to taxation, by which he 
lost his right to vote, unless it is shown affirmatively that the omis- 
sion was caused by want of integrity or fidelity. 6 But they are liable 
for assessing and issuing a warrant for the collection of a tax when 
the town is not legally organized. 7 

1 Stats. 1868, ch. 211, § 2. 5 Baker v. Allen, 21 Pick.' 382. 

2 Stats. 1865, ch. 68. 6 Griffin v. Rising, 11 Met. 339. 

3 Stats. 1872, ch. 310. . 7 Dickinson v. Billings, 4 Gray, 42. 

4 Gen. Stats, ch. 11, § 51. 



ASSESSMENT OF TAXES. 95 

46. Each assessor shall be paid by his city or town two * 
dollars and fifty cents a day for every whole day that he 
is employed in that service, with such other compensation 
as the city or town shall allow. 2 

He is entitled to the statute compensation if it exceeds that pro- 
vided by the town ; but it must appear from the vote of the town 
that the sum voted is intended to be in addition to the statute com- 
pensation, if he is to take both. 3 

47. Every tax, except a poll tax, which is invalid by 
reason of any error or irregularity in the assessment, and 
which has not been paid, or which has been recovered 
back, ma}" be reassessed by the assessors for the time being, 
to the just amount to which, and upon the estate or to the 
person to whom, such tax ought at first to have been as- 
sessed, whether such person has continued an inhabitant 
of the same city or town or not. 

Taxes re-assessed under the provisions of this section shall be com- 
mitted to, and collected and paid over by, the collector of taxes for 
the time being, in the same manner as other taxes, except that the 
name of the person to whom the taxes were originally assessed shall 
be stated in the warrant ; and the bond of such collector shall apply 
to such re-assessed taxes. 4 

48. If, through any erroneous or illegal assessment or 
apportionment of taxes, a party is assessed more or less 
than his due proportion, the tax and assessment shall be 
void only to the extent of the illegal excess. 5 

49. Every corporation established within this common- 
wealth by special charter, or organized under the general 
laws thereof, which holds on the first day of May in any 
year shares of stock in corporations other than those sub- 
ject to taxation under the provisions of chapter two hun- 
dred and eighty-three of the acts of the year one thousand 
eight hundred and sixty- five, and acts in amendment 
thereof, or bonds of any description, as collateral security 
for borrowed money, or other liability, shall annually, be- 

i Stats. 1873, ch. 156. * Stats. 1870, ch. 394. 

2 Gen. Stats, ch. 11, § 52. 5 Gen. Stats, ch. 11, §§ 53, 54. 

8 Moodv v. Newbury port, 3 Met. 
431. 



96 TOWN AND PARISH OFFICER. 

tween the first and tenth day of May, return to the tax 
commissioner the whole number of such shares and bonds 
so held, the names and residences of the persons pledging 
the same, and the number, denomination, and the par 
value, if known, of the shares and bonds pledged by 
each ; and the tax commissioner shall, on or before the 
twentieth da}' of June in each year, transmit to the asses- 
sors of the several cities and towns of the commonwealth 
a true copy of the list furnished by such corporations. 

50. An}' corporation neglecting or refusing to make 
the returns required by this act (the preceding section), 
or wilfully making a return which is materially false or 
defective, shall forfeit for each offence a sum of not less 
than fifty nor more than one thousand dollars, to be recov- 
ered by an action of tort to the use of the city or town in 
which a person pledging such stock or bonds resides. 1 

51. The assessors of each city and town in the common- 
wealth, in addition to the returns which they are now 
required to make by the provisions of the first section of 
chapter two hundred and eighty-three of the acts of the 
year eighteen hundred and sixty-five, shall, at the time 
specified in said section, return also the aggregate amount 
of the assets of their respective cities or towns, and the 
amount of indebtedness of such cities and towns for which 
notes, bonds, or other similar evidences of debt, the pay- 
ment of which is not provided for by the taxation of the 
then current year, were outstanding on the first of May 
then next preceding, with a concise statement of the 
various purposes for which such indebtedness was incurred, 
and the amount incurred for each purpose. 2 

52. When the assessors of any chry or town, after the 
time when their warrant has been committed to the col- 
lector of taxes, shall discover that the real or personal 
estate of any person, to an amount not less than (one 3 ) hun- 
dred dollars, and liable to taxation, has been omitted from 
the last annual assessment of taxes in such city or town, 

1 Stats. 1870, ch. 144. 3 stats. 1873, ch. 272. 

2 Stats. 1870, ch. 76. 



ASSESSMENT OF TAXES. 97 

said assessors shall proceed forthwith to assess such person 
for such estate in like manner as he should have been 
assessed in such last annual assessment. The taxes so 
assessed shall be entered in the tax list of the collector of 
the city or town, and he shall collect and pay over the 
same in the manner specified in his warrant : provided, 
that such tax shall not be assessed after the (fifteenth day 
of September) 1 for any such omission. 

53. No tax of an}' city or town shall be invalidated by 
reason that, in consequence of the provisions of this act 
(preceding section) , the whole amount of the taxes assessed 
in such city or town shall exceed the amount authorized by 
law to be raised. 2 

54. Any inhabitant of this commonwealth who shall 
escape taxation by wilfully and designedly changing or 
concealing his residence, or by any other act, with the in- 
tent so to escape, shall be liable, upon conviction therefor, 
to pay a fine of twice the amount of the last tax paid by 
such person ; or if he shall have paid no tax in this com- 
monwealth, a fine of not less than one hundred, nor more 
than five thousand dollars. 8 

1 Stats. 1873, ch. 272. 8 Stats. 1864, ch. 172, § 1. 

2 Stats. 1868, ch. 320. 



98 TOWN AND PARISH OFFICER. 



CHAPTER XI. 

PEKSONS AND PROPEETY SUBJECT TO TAXATION. 

1. A poll tax shall be assessed in the manner herein- 
after provided, on every male inhabitant of the common- 
wealth above the age of twenty years, whether a citizen of 
the United States or an alien. 

2. All property, real and personal, of the inhabitants of 
this state, not expressly exempted by law, shall be subject 
to taxation as hereinafter provided. 

3. Real estate, for the purposes of taxation, shall 
include all lands within this state, and all buildings and 
other things erected on or affixed to the same. 

4. Personal estate shall, for the purposes of taxation, 
include goods, chattels, money, and effects, wherever they 
are, ships and vessels at home or abroad, money at in- 
terest, and other debts due the persons to be taxed more 
than they are indebted or pay interest for, public stocks 
and securities, stocks in turnpikes, bridges, and moneyed 
corporations, within or without the state, the income from 
an annuity, and so much of the income from a profession, 
trade, or employment, as exceeds the sum of six hundred 
dollars a year ; but no income shall be taxed which is 
derived from property subject to taxation. 1 

This section is so far amended that the income subject to taxation 
shall be only so much as exceeds two thousand dollars, and which has 
accrued to any person during the year ending on the first day of May 
of the year in which the tax is assessed. 2 

5. The stock of all corporations chartered under the laws of this 
state is not now taxable to the shareholders except banks of issue and 
deposit, including national banks and those yet existing which were 
chartered by the state, and the mercantile institutions for savings of 
the city of Boston ; but the stock of all corporations chartered by 

1 Gen. Stats, ch. 11, §§ 1-4. * stats. 1866, ch. 48 ; 1873, ch. 354. 



PERSONS AND PROPERTY SUBJECT TO TAXATION. 99 

other states is taxable. 1 But such proportion of the tax collected by 
the state under section five of the statutes of 1867, ch. 283, of cor- 
porations chartered under the laws of this state as corresponds to 
the proportion of the stock of such corporation owned by persons re- 
siding in this commonwealth, shall be credited and paid to the several 
cities and towns where it appears from the returns or other evidence 
that such shareholders resided on the first day of May next preced- 
ing, according to the number of shares so held in such cities and 
towns respectively : provided, that in case stock is held by copartners, 
guardians, executors, administrators or trustees, the proportion of tax 
corresponding to the amount of stock so held shall be credited and 
paid to the towns where the stock would have been taxed, under the 
provisions of chapter eleven of the General Statutes ; and provided, 
further, that when a town owns stock in any corporation taxed under 
this act, a return to said town shall be made in like manner as is 
provided in the case of stock held by individuals residing in said 
town. 

Said commissioner shall ascertain and determine the amount due 
to each city and town, under this section, subject to appeal as herein- 
before provided, and shall notify the treasurer of each city and 
town thereof, and certify the amount, as finally determined, to the 
treasurer of the commonwealth, who shall thereupon pay over the 
same. 

6. A clerk in a post-office, who is appointed by the deputy post- 
master, and his appointment approved by the postmaster-general, is 
taxable for the income derived from his appointment as such clerk. 2 
This was held on the ground that he is not an oflicer of the United 
States, it having been decided in the Supreme Court of the United 
States that the several states have no authority to tax an officer of' 
the government of the United States for his oflice or its emoluments. 8 
It was admitted in Melcher v. Boston that a postmaster was an oflicer 
of the United States ; and it was decided in New Hampshire that a 
contractor for carrying the mail is not such oflicer. 4 

1 Stats. 1866, ch. 48; Stats. 1865, 3 Dobbins v. Commissioners of 
chs. 242, 283, § 15 ; 1866, ch. 291, § 2 ; Erie County, 16 Pet. 435. 

1867, ch. 160, § 1. 4 Whitehouse v. Langdon, 16 N. H. 

2 Melcher v. Boston, 9 Met. 73. 331. 



100 TOWN AND PARISH OFFICER. 



CHAPTER XII. 

PERSONS AND PROPERTY EXEMPTED PROM TAXATION. 

1. The following property and polls shall be exempted 
from taxation : — 

First. The property of the United States. 

Second. The property of the commonwealth, except 
real estate of which the commonwealth is in possession 
under a mortgage for condition broken. 

Third. The personal property of literary, benevolent, 
charitable, and scientific institutions incorporated within 
this commonwealth, and the real estate belonging to such 
institutions, occupied by them or their officers for the pur- p 
poses for which they were incorporated. 1 

The real estate of the foregoing institutions, purchased with a view 
of removal thereto, shall not be exempt from taxation for a longer 
period than two years until such removal takes place. 2 

Fourth. All property belonging to common-school dis- 
tricts, the income of which is appropriated to the purposes 
of education. 

Fifth. The Bunker Hill Monument. 

Sixth. The household furniture of every person, not 
exceeding one thousand dollars in value, his wearing 
apparel, farming utensils, and mechanics' tools necessary 
for carrying on his business. 

Seventh. Houses of religious worship, and the pews 
and furniture (except for parochial purposes) ; but por- 
tions of such houses appropriated for purposes other than 

i See chapter on "Associations for Religious, Charitable, Educational, 
and other Purposes." 
2 Stats. 1878, ch. 214. 



PERSONS AND PROPERTY EXEMPT FROM TAXATION. 101 

religious worship shall be taxed at the value thereof to the 
owners of the houses. 

Eighth. Cemeteries, tombs, and rights of burial, so long 
as the same shall be dedicated for the burial of the dead. 

Ninth. The estate, both real and personal, of incor- 
porated agricultural societies. 

Tenth. The property to the amount of five hundred 
dollars of a widow or unmarried female above the age of 
twenty-one years, of any person above the age of seventy- 
five years, and of any minor whose father is deceased : 
provided, that the whole estate real and personal of said 
persons does not exceed in value the sum of one thousand 
dollars, exclusive of property otherwise exempted under 
the provisions of this section. 1 

Eleventh. Mules, horses, and neat cattle, less than one 
year old ; and swine and sheep less than six months old. 

Twelfth. The polls and estates of Indians. 2 

Thirteenth. The polls and any portion of the estates of 
persons who by reason of age, infirmity, and poverty, 
are in the judgment of the assessors unable to contribute 
fully towards the public charges. 3 

2. In all cases where lands belonging to the commonwealth are or 
have been sold by the commissioners of public lands, and agreements 
for deeds are or have been given by said commissioners, the land shall 
be free from taxation for the space of three years, unless previously 
built upon or otherwise improved by the purchasers or their assigns ; 
and upon the expiration of three years from the date of such sale, 
such lands shall be taxable to the purchasers thereof or their assigns, 
in the same manner and to the same extent as if deeds of the same 
had been executed and delivered. 4 

3. A corporation established to manage and apply a fund towards 
the support of a minister either by paying the same directly, in whole 
or in part to the minister or to the treasurer of the parish, or other- 
wise to the use of the parish and for their relief and benefit, is not 
it seems a " charitable " institution within the meaning of the third 
clause of section one above. 5 

1 Stats. 1878, ch. 206. * Stats. 1867, ch. 101. 

2 See Stats. 1869, ch. 463, § 1. 6 Trustees of Greene Foundation, 

3 Gen. Stats, ch. 11, § 5. See fol- 12 Cush. 59. 
lowing sections for amendments and 
construction of above section. 



102 TOWN AND PARISH OFFICER. 

4. A dwelling-house built by the corporation of Harvard College, 
one of the institutions included in the third clause of section one 
above, on land of the corporation within the college yard and leased 
to one of the professors, to be occupied by him as a residence for 
himself and family at an annual rent, is not exempt from taxation. 
But it would be otherwise if the building had been built for one of 
the professors or officers of the college, and had been occupied by him 
with the permission of the college and without having any estate 
therein, or paying any rent therefor. 1 

5. The fifth section of chapter eleven of the General Statutes 
(section one above) is hereby so far amended in the sixth and seventh 
clauses, that the tools of a mechanic necessary for carrying on his 
business are exempted from taxation only to an amount not exceed- 
ing three hundred dollars in value ; and only such houses of religious 
worship are exempted from taxation as are owned by a religious 
society or held in trust for the use of religious organizations. 2 

6. Land taken for public uses is exempt from taxation ; that is, 
where a public duty is imposed upon those taking it or they are 
charged with a public trust. Under this exemption is included land 
taken by a railroad company under its location and the buildings and 
structures erected thereon if they are reasonably necessary to its 
proper and convenient use as a railroad. 3 But land taken or pur- 
chased by a railroad company outside of the limits of its location 
even for depot or station purposes is not exempt. 4 The limits of its 
location will be determined by its charter, but it is generally in this 
state five rods in width. Nor is the property of gas-light companies 
exempt. 5 But land purchased in fee or otherwise taken by a city by 
authority of the legislature for the purpose of supplying the city 
with pure water and used for that purpose only is exempt. 6 

7. All plantations of timber trees in this commonwealth 
upon land (not at the time of said planting woodland or 
sprout-land, and not having been such within five years 
previously) , the actual value of which at the time of plant- 
ing does not exceed fifteen dollars per acre, of any of 
the following kinds, to wit : chestnut, hickory, white ash, 
white oak, sugar maple, European larch and white pine, 
in number not less than two thousand trees to the acre, 

1 Pierce v. Cambridge, 2 Cush. * Gen. Stats, ch. 63, § 20. 

611. 6 Commonwealth v. Lowell Gas . 

2 Stats. 1865, ch. 206. Light Co., 12 Allen, 75-77. 

8 Worcester v. Western R. R. Co., 6 Wayland v. County Commission- 
4 Met. 564 ; Boston & Maine R. R. ers, 4 Gray, 500. 
Co. v. Cambridge, 8 Cush. 237. 



PERSONS AND PROPERTY EXEMPT FROM TAXATION. 103 

shall together with the land upon which the same are sit- 
uated be exempt from taxation for a period of ten years 
from and after said trees shall have grown in height four 
feet on the average subsequently to such planting : pro- 
vided, that said exemption shall not extend beyond such 
time as said land shall be devoted exclusively to the growth 
of said trees ; and provided, further, that the owner or 
owners of such plantations shall appear before the board 
of assessors in the towns where the same are located and 
prove to the satisfaction of such board the herein men- 
tioned conditions. 1 

8. Any town, for the term of ten years next after May 4, 1872, 
may exempt from taxation for any purpose whatsoever all the 
machinery, buildings, real estate, and all other property owned by 
any individual or individuals, corporation or corporations, organized 
under any law of this state, and used exclusively in the business of 
manufacturing beet sugar : provided, that this exemption from tax- 
ation shall not apply to lands upon which beets are raised for the 
purpose of manufacture. 2 

9. It shall be the dut}^ of the assessors of each city and 
town in each year to enter upon the valuation list of their 
respective city or town in the appropriate columns after 
the enumeration of the taxable persons and estates therein 
contained a statement and description of all the property 
and estate and the fair ratable value thereof situate in 
such city or town or which would be taxable there but for 
the provisions of the third, seventh, and ninth divisions 
of section five of chapter eleven of the General Statutes, 
with the names of the persons or corporations owning the 
same, and the purpose for which it is used, which are 
exempted from taxation by the foregoing provisions of 
law, with a reference to the law by which such exemption 
is allowed. 

10. The assessors of each city or town shall, on or before 
the first day of October in each year, make and forward 
to the tax commissioner a statement showing the whole 
amount of property enumerated in the first section, and 

1 Stats. 1878, ch. 131. 2 stats. 1872, ch. 327. 



104 TOWN AND PARISH OFFICER. 

the amount in each class, and stating separately the aggre- 
gate amount belonging to each of the four classes em- 
braced in the third division of the fifth section of chapter 
eleven of the General Statutes. 1 

i Stats. 1874, ch. 227. 



TAXES UPON CERTAIN CORPORATIONS. 105 



CHAPTER XIIL 

TAXES UPON CERTAIN CORPORATIONS. 

1. The tax commissioner shall annually, on or before 
the twentieth day of June in each year, cause to be for- 
warded to the assessors of every city and town in this 
commonwealth a list of all Massachusetts corporations 
known to him to be taxable on the first day of May next 
preceding said twentieth day of June under chapter two 
hundred and eighty-three of the acts of the year eighteen 
hundred and sixty-five ; and such other information in his 
possession, as in his judgment will assist the assessors of 
the cities and towns in the assessment of taxes. 1 

2. All the shares of stock in banks, whether of issue or 
not, existing by authority of the United States, or of this 
commonwealth, and located within this commonwealth, 
including shares in the capital stock of the Mercantile Sav- 
ings Institution in the city of Boston, shall be assessed to 
the owners thereof in the cities or towns where such banks 
are located, and not elsewhere, in the assessment of all 
state, county, and town taxes imposed and levied in such 
place by the authority of law, whether such owner is a 
resident of said city or town or not, at the fair cash value 
of such shares on the first day of May of the year in which 
the tax shall be assessed, first deducting therefrom the 
proportionate part of the value of the real estate belong- 
ing to the bank, at the same rate, and no greater, than 
that at which other moneyed capital in the hands of citi- 
zens and subject to taxation is by law assessed. And the 
persons or corporations who appear from the records of the 

1 Stats. 1867, ch. 188, § 2. 



106 TOWN AND PARISH OFFICER. 

banks to be the owners of shares at the close of the busi- 
ness day next preceding the first day of May in each year, 
shall be taken and deemed to be the owners thereof for the 
purposes of this section. 

3. It shall be the duty of every such bank or other cor- 
poration to pay to the collector or other person authorized 
to collect the taxes of the city or town in which such bank 
or other corporation is located, at the time in each year 
when other taxes assessed in the said city or town become 
due, the amount of the tax so assessed in such year upon 
the shares in such bank or other corporation. If such tax 
shall not be so paid, the said bank or other corporation 
shall be liable for the same ; and the said tax, with inter- 
est thereon at the rate of twelve per centum per annum 
from the day when the tax became due, may be recovered 
in an action of contract brought by the treasurer of such 
city or town. 

4. The shares of such banks or other corporations shall 
be subject to the tax paid thereon by the corporation or 
the officers thereof, and the corporation and the officers 
thereof shall have a lien on all the shares in such bank or 
other corporation, and on all the rights and property of the 
shareholders in the corporate property for the payment of 
said taxes. 

5. Assessors of cities and towns in which any national 
bank or banking association is located, for the purpose of 
ascertaining the rate at which taxes shall be assessed, shall 
omit from the valuation upon which the rate is to be based 
the value of all shares held by non-residents of said cities 
and towns, and no tax of any city or town shall be invalid- 
ated by reason of any excess of the amount thereof over 
the amount to be raised in consequence of the provisions 
of this act. 

6. It shall be the duty of the cashier of every such bank 
to make and deliver to the assessors of the city or town in 
which such bank is located, on or before the tenth day of 
May in each year, a statement verified by the oath of such 
cashier showing the name of each shareholder, with his 



TAXES UPON CERTAIN CORPORATIONS. 107 

residence and the number of shares belonging to him at 
the close of the business day next preceding the first day 
of May, as the same then appeared on the books of said 
bank. In case the cashier shall fail to make such state- 
ment, the assessors of the city or town in which the bank 
is located shall forthwith, upon such failure, proceed to 
obtain a list of shareholders, with the residence of and 
number of shares belonging to each. 

In either case the assessors of each city and town shall, 
immediately upon obtaining such list or statement, trans- 
mit to the tax commissioner a true copy of the same, and 
shall further, by notice in writing, inform said commis- 
sioner of the rate per centum upon the valuation of the 
city or town of the total tax in such city or town for the 
year, immediately upon the ascertainment thereof, and also 
of the amount assessed upon the shares of each bank located 
therein, under the provisions of this act. 

7. Said commissioner shall thereupon, as soon as may 
be, determine from the returns provided for by section five 
of this act, and otherwise, the proportionate amount of the 
tax so assessed upon the shares in each of said banks 
which has been assessed upon shares which according to 
the provisions of chapter eleven of the General Statutes 
would not be taxable in said city or town, which amounts, 
as finally determined under the provisions of this act, shall 
be a charge to said city or town as an offset against any 
payments to be made from the treasurer of the common- 
wealth to said city or town. 

8. Said commissioner shall, in like manner, determine 
the proportionate amount of tax so assessed upon shares 
in each of said banks, which, according to the provisions 
of chapter eleven of the General Statutes, would be taxa- 
ble in each city or town in this commonwealth other than 
that in which the bank is located, which amounts, as 
finally determined under the provisions of this act, shall 
become a credit to such city or town. 

9. Said' commissioner shall, by written or printed notice, 
delivered at the assessors' office or sent by mail, inform the 



108 TOWN AND PARISH OFFICER. 

assessors of each city or town affected thereby of the 
aggregate amount of charges and credits against and in 
favor of such city or town under the seventh and eighth sec- 
tions of this act, as determined by him, forthwith, upon 
the determination thereof. From this determination an 
appeal may be made by said assessors, within ten days 
from the date of said notice, to the board of appeal created 
under the thirteenth section of the two hundred and eighty- 
third chapter of the acts of the year eighteen hundred 
and sixty- five, which board shall hear such appeal, decide 
the matter in question, and notify said commissioner and 
the party appealing thereof, and their decision shall be 
final. 

10. Said commissioner shall, at the expiration of ten 
days after notice given, as provided in section nine, or 
upon being informed of the decision of the board of appeal, 
if an appeal is made, certify to the treasurer and receiver- 
general the aggregate amount of charges mentioned in 
section seven against each city and town in the common- 
wealth, and also the aggregate of credits mentioned in the 
eighth section in favor of each city or town, as finally 
determined under the provisions of sections seven, eight, 
and nine, and the treasurer shall thereupon withhold out 
of any sums of money which are or may become payable 
out of the state treasury to any city or town against which 
a charge is certified, the amount so certified ; and shall 
allow or pay over to each city or town in favor of which a 
credit is certified the amount so certified. 

11. In the adjustment and determination of amounts due 
under the provisions of this act, an allowance of one per 
centum upon the amount assessed and collected under this 
act shall be made for the expenses of assessing and collect- 
ing the same, and no city or town shall be entitled to any 
allowance of credits or payments under this act, or under 
the two hundred and eighty-third chapter of the acts of 
the year eighteen hundred and sixty-five, in any year, 
until the assessors thereof shall have complied with the 
requirements of this act. 



TAXES UPON CERTAIN CORPORATIONS. 109 

12. Chapter three hundred and twenty-one of the acts of 
the year eighteen hundred and seventy-two is repealed, 
but this repeal shall not revive any former acts by said act 
repealed, or defeat any rights which have alread}^ accrued, 
and no bank, the shares in which are made taxable by this 
act, shaH be subject to taxation under the provisions of 
chapter two hundred and eighty-three of the acts of the 
year eighteen hundred and sixty-five, and the acts in addi- 
tion thereto, nor shall the shareholders be taxable for state, 
county, or town purposes, except under the provisions of 
this act in respect to their shares therein. 

13. The amount actually paid into the treasury of the 
commonwealth in each year, under the provisions of this 
act, on account of shares in banks or banking associations 
which on the first day of May are the absolute property of 
any savings bank or institution for savings subject to tax- 
ation under the provisions of chapter two hundred and 
twenty-four of the acts of the year eighteen hundred and 
sixty-two, and acts in amendment thereof, or of any insur- 
ance corporation which is subject to taxation under the 
provisions of chapter two hundred and eighty-three of the 
acts of the year eighteen hundred and sixty-five, and acts 
in amendment thereof, shall be deducted from the tax pay- 
able under the provisions of said acts by such savings bank, 
institution for savings or insurance corporation at the next 
payment to the commonwealth after the assessment of 
bank shares as herein provided. The tax commissioner 
may require a statement of all such shares so owned by 
any such savings bank, institution for savings or insurance 
corporation, to be made in a form approved by him, and 
signed and sworn to by the treasurer or like financial officer 
thereof. He shall, from such statement and other evi- 
dence, and subject to appeal b}^ such corporation, as herein 
provided in similar cases, determine the amounts to be 
deducted, and certify the same to the treasurer of the com- 
monwealth upon the final determination thereof. 

14. The tax commissioner shall, as soon as maybe after 
the first Monday in December in each year, certify to the 



110 TOWN AND PARISH OFFICER. 

treasurer the amount assessed and collected for that year, 
in respect of shares in such banks or other corporations 
owned absolutely by any society, district or institution of 
any of the classes specified in the third, fourth, and ninth 
divisions of section five of chapter eleven of the General 
Statutes, and the treasurer shall thereupon pay over such 
amounts to the corporations owning such shares. 

15. It shall be the duty of the assessors of each chy or 
town, upon request of any person resident in such city or 
town, who is the owner of any shares in such banks or other 
corporations which, under the provisions of the tenth and 
thirteenth divisions of section five of chapter eleven of the 
General Statutes would be entitled to exemption from tax- 
ation, to give such owner a certificate setting forth such 
fact, and it shall be the duty of the treasurer of such city 
or town, upon request therefor and the deposit with him of 
such certificate, to pay over to such owner the amount so 
collected in respect of such shares, immediately, upon the 
allowance of the amount which shall be made to such city 
or town under the provisions of this act. 

16. Shares in such banks and other corporations shall 
be included in the returns required to be made by the 
provisions of section two of chapter two hundred and 
eighty-three of the acts of the year eighteen hundred and 
sixty-five. 

17. Whenever it shall be made to appear to the tax com- 
missioner by certificate of the assessors or a majority of 
them or other satisfactory evidence, that any tax assessed 
in accordance with the provisions of the seventh section of 
chapter three hundred and twenty-one of the acts of the 
year eighteen hundred and seventy-two, which has been 
paid over or accounted for to the state treasury in con- 
formity with said act, has been assessed in respect to 
shares in banks upon which the owners have also been 
specifically taxed for the said year in the chty or town in 
which such owner resides, for state, county, and town pur- 
poses, the tax commissioner shall, within a reasonable 
time thereafter, certify to the treasurer and receiver-general 



TAXES UPON CERTAIN CORPORATIONS. Ill 

the name of the person who appears to be the owner of 
such shares, and the amount so paid or credited in each 
case, and the treasurer shall thereupon pay over to said 
person such amount. 1 

i Stats. 1873, ch. 315, §§ 1-16. 



112 TOWN AND PARISH OFFICER. 



CHAPTER XIV. 

WHERE POLLS AND PROPERTY SHALL BE ASSESSED. 

1. The poll tax shall be assessed upon each taxable 
person, in the place where he is an inhabitant on the first 
da}^ of May in each year, except in cases otherwise pro- 
vided for by law. The poll tax of minors liable to taxa- 
tion shall be assessed to, and in the places of the residence 
of, the parents, masters, or guardians, having control of 
the persons of such minors ; but if a minor has no parent, 
master, or guardian, within this state, he shall be person- 
ally taxed for his poll, as if he were of full age. The poll 
tax of every other person under guardianship shall be as- 
sessed to his guardian in the place where the guardian is 
taxed for his own poll. 1 

2. It is often a question of great nicety to determine of what place 
a person is an inhabitant, because, as Chief Justice Shaw says : " It 
may often occur that the evidence of facts tending to establish the 
domicile in one place would be entirely conclusive, were it not for the 
existence of facts and circumstances of a still more conclusive and 
decisive character which fix it beyond question in another." 2 But 
there are certain well-established principles or rules which will aid in 
determining this question. First, " every person has a domicile some- 
where, and no person can have more than one domicile at the same 
time for one and the same purpose." Second, "a man retains his 
domicile of origin till he changes it by acquiring another, and so each 
successive domicile continues until changed by acquiring another." 3 
It is equally well settled that in order to change the domicile the fact 
and intent must concur, — neither alone is sufficient, — by which it 
must be intended that there needs to be a change of residence, with 
an intention to remain in the new place of residence an indefinite 
time and without the intention of returning to the former domicile 
at any particular period or when any particular purpose is accom- 

1 Gen. Stats, ch. 11, § 6. Supreme Judicial Court of Massachu- 

2 Thorndike v. City of Boston, 1 setts, 5 Met. 587; Otis v. City of 
Met. 242. Boston, 12 Cush. 50. 

8 Opinion of the judges of the 



WHERE POLLS, ETC., SHALL BE ASSESSED. 113 

plished. 1 But this must be taken with a reasonable limitation as to 
the time occupied in accomplishing the particular purpose. It often 
happens in cases of divided residence, that the circumstances of each 
are so nearly balanced that the intention of the party to consider the 
one or the other to be his domicile will determine it to be so. 2 The 
place where a corporation is an inhabitant is determined in most 
cases by its act of incorporation, which fixes its location. And in 
corporations organized under the general law, the location must be 
fixed in the articles of association. 

3. The poll tax of minors who are in the service of a manufactur- 
ing corporation and receiving salaries cannot legally be assessed to 
such corporation. 3 

4. A taxable person in a city or town on the first clay of 
May who, when inquired of by the assessors thereof, re- 
fuses to state where he considers his legal residence to be, 
shall for the purpose of taxation be deemed an inhabitant 
of such place. If when so inquired of he designates 
another place as his legal residence, said assessors shall 
notifj^ the assessors of such place, who, upon receiving the 
notice, shall tax such person as an inhabitant of their city 
or town. But such person shall not be exempt from the 
payment of a tax legally assessed upon him in the city or 
town of his legal domicile. 

5. Taxes on real estate shall be assessed in the city or 
town where the estate lies, to the person who is either the 
owner or in possession thereof on the first da} r of May. 
Mortgagors of real estate shall, for the purposes of taxa- 
tion, be deemed owners until the mortgagee takes posses- 
sion, after which the mortgagee shall be deemed the 
owner. 4 

6. The real estate of banks and manufacturing corporations is to 
be taxed to them in the place where it is situated. 5 

7. When a tenant paying rent for real estate is taxed 
therefor, he may retain out of his rent the taxes paid by 

i Bulkley v. Williamstown, 3 * Gen. Stats, ch. 11, §§ 7, 8. 
Gray, 495 ; Holmes v. Greene, 7 Gray, 5 Tremont Bank v. Boston, 1 Cush. 
300. 142; Dunnell Manufacturing Cor- 

2 Trustees of Greene Foundation poration v. Pawtucket, 7 Gray, 277. 
v. City of Boston, 12 Cush. 60. 

3 Boston & Sandwich Glass Co. v. 
Citv of Boston, 4 Met. 181. 



114 TOWN AND PARISH OFFICER. 

him, or may recover the same in an action against his 
landlord, unless there is an agreement to the contrary. 

8. The undivided real estate of a deceased person may 
be assessed to his heirs or devisees without designating 
any of them by name, until they have given notice to the 
assessors of the division of the estate and the names of the 
several heirs or devisees ; and each heir or devisee shall be 
liable for the whole of such tax, and when paid by him he 
may recover of the other heirs or devisees their respective 
portions thereof. 

9. The real estate of a person deceased, the right or 
title to which is doubtful or unascertained by reason of 
litigation concerning the will of the deceased or the valid- 
ity thereof, may be assessed in general terms to the estate 
of the deceased ; and said tax shall constitute a lien upon 
the land so assessed, and may be enforced by the sale of 
the same or a part thereof, as provided for enforcing other 
liens for taxes on real estate. 

10. All personal estate within or without this state 
shall be assessed to the owner in the city or town where 
he is an inhabitant on the first day of May, except as 
follows : 1 — 

The interest of an inhabitant of this commonwealth, as a partner, 
in the property of a firm established and carrying on business in 
another state is taxable here. 2 And where a life-interest in personal 
property terminates at any time after the first day of May, the life- 
tenant or his representative is liable for the whole tax. 3 

First. All goods, wares, merchandise, and other stock 
in trade (except ships or vessels owned by a copartner- 
ship) , including stock employed in the business of manu- 
facturing or of the mechanic arts, in cities or towns within 
the state, other than where the owners reside, whether 
such owners reside within or without this state, shall be 
taxed in those places where the owners hire or occupy 
manufactories, stores, shops, or wharves, whether such 

i Gen. Stats, ch. 11, §§ 9-12. 3 Holmes v. Taber, 9 Allen, 246. 

2 Bemis v. Aldermen of Boston, 14 
Allen, 366. 



WHERE POLLS, ETC., SHALL BE ASSESSED. 115 

property is within said places or elsewhere on the first day 
of May of the year when the tax is made. 1 

It makes no difference that the property belongs to a firm one of 
whose partners resides in the town where the property is situated. 
To constitute an occupation, there must be an actual possession, use, 
and efficient control of the premises ; such an occupation as one who 
owns or hires would ordinarily have. 2 This clause and the third be- 
low do not apply to corporations chartered by this state, as the stock- 
holders are liable to taxation upon their shares in the towns where they 
dwell, but it is applicable to property owned by a foreign corporation. 3 

Second. All machinery employed in any branch of man- 
ufactures, and belonging to a person or corporation, shall 
be assessed where such machinery is situated or employed ; 
and, in assessing the stockholders for their shares in any 
manufacturing corporation, there shall first be deducted 
from the value thereof the value of the machinery and real 
estate belonging to such corporation. 4 

This clause does not apply to foreign corporations. 5 

Third. Horses, mules, neat cattle, sheep, and swine, 
kept throughout the year in places other than those where 
the owners reside, whether such owners reside within or 
without this state, and horses employed in stages or other 
vehicles for the transportation of passengers for hire, 
shall be assessed to the owners in the places where they 
are kept. 

Fourth. Personal propert} r belonging to persons under 
guardianship shall be assessed to the guardian in the 
place where the ward is an inhabitant, unless the ward 
resides and has his home without the state, in which case 
it shall be taxed to the guardian in the place where he is 
an inhabitant. 6 

The same rules would seem to be applicable in determining the 
place where a ward is an inhabitant as in the case of any othe; 
citizen. 7 

1 Gen. Stats, ch. 11, § 12, cl. 1. * Gen. Stats, ch. 11, § 12, cl. 2. 

2 Lee v. Templeton, 6 Gray, 579. 5 Dwight v. Mayor, &c, of Bos- 

3 Middlesex R.R. Co. v. Charles- ton, 12 Allen, 316. 

town, 8 Allen, 333 ; Blackstone Manuf. 6 Gen. Stats, ch. 11, § 12, cl. 3, 4. 
Co. v. Blackstone, 13 Gray, 488. 7 Kirkland v. Whately, 4 Allen, 462. 



116 TOWN AND PARISH OFFICER. 

Fifth. Personal property held in trust by an executor, 
administrator, or trustee, the income of which is payable 
to another person, shall be assessed to the executor, ad- 
ministrator, or trustee, in the place where such other per- 
son resides, if within the state, and if he resides out of 
the state, it shall be assessed in the place where the ex- 
ecutor, administrator, or trustee resides, and if there are 
two or more executors, administrators, or trustees, residing 
in different places, the property shall be assessed to them 
in equal portions in such places, and the tax thereon shall 
be paid out of said income. If the executor, administra- 
tor, or trustee is not an inhabitant of this state, it shall 
be assessed to the person to whom the income is payable, 
in the place where he resides. 

Whenever personal property belonging to two or more persons 
under guardianship, or personal property held in trust by an execu- 
tor, administrator, or trustee, the income of which is payable to two 
or more persons, or personal property placed in the hands of a cor- 
poration or individual as an accumulating fund for the future benefit 
of two or more heirs or other persons, shall be assessed under section 
twelve of chapter eleven of the General Statutes (this section), by 
the assessors of anv city or town in whole or in part, they shall, upon 
being requested in writing within the time specified by them for the 
bringing in of lists under section twenty-two of said chapter, and 
being therein informed of the names, domiciles, and proportionate 
shares of such wards, cestuis que trust, heirs, or other persons, make 
separate assessments in such manner as to distinguish how much of 
such personal property is assessed in respect to each. Should any 
of said several assessments be illegally made, an action at law shall 
lie to recover back the taxes paid thereon, in the same manner as in 
other cases of illegal assessment. 1 

Sixth. Personal property placed in the hands of a cor- 
poration or individual as an accumulating fund for the 
future benefit of heirs or other persons shall be assessed 
to such heirs or persons, if within the state, otherwise to 
the person so placing it, or his executors or administra- 
tors until a trustee is appointed to take charge of such 
property, or the income thereof. 2 

1 Stats. 1878, ch. 189. trustee, to the trustee in the place of 

2 And after the appointment of a his residence to the extent of the por- 



WHERE POLLS, ETC., SHALL BE ASSESSED. 117 

Whenever personal property placed in the hands of a corporation 
or an individual as an accumulating fund for the future benefit of 
heirs or other persons has been duly assessed to such heirs or persons 
according to the provisions of this clause six, and the persons so 
taxed neglect to pay the tax for one year after it has been com- 
mitted to the collector, the collector may, in his own name, maintain 
an action of contract therefor against said trustee, in like manner as 
for his own debt ; and the amount thereof paid by said trustee may 
be allowed in his account as said trustee. 1 

Seventh. The personal estate of deceased persons shall 
be assessed in the place where the deceased last dwelt. 
After the appointment of an executor or administrator, it 
shall be assessed to such executor or administrator until 
he gives notice to the assessors that the estate has been 
distributed and paid over to the parties interested therein. 
Before such appointment, it shall be assessed in general 
terms to the estate of the deceased, and the executor or 
administrator subsequently appointed shall be liable for 
the tax so assessed in like manner as though assessed to 
him. 2 

A tax is not lawfully assessed to the "estate of" a deceased per- 
son after the date of the appointment of the administrator. 3 

Personal property held by an executor or administrator shall be 
taxable according to the provisions of this seventh clause for the 
space of three years after the appointment of such executor or ad- 
ministrator, unless the same has been distributed and notice of such 
distribution has been given to the assessor, stating the name, resi- 
dence, and amount paid to the several parties interested in the estate 
who are residents of the commonwealth. After three years from 
the date of such appointment, such property shall be assessed ac- 
cording to the provisions of the fifth clause of section twelve of said 
chapter eleven, fifth clause on preceding page, whether the same has 
been distributed or not. 

After personal property shall have been legally assessed in any 
city or town to an executor, administrator, or trustee, an amount not 
less than that last assessed by the assessors of such city or town in 
respect of such property shall be deemed to be the sum assessable, 
unless a true list of such property is brought in to the assessors, in 



tion in his hands belonging to bene- * Stats. 1878, ch. 189. 

ficiaries who are non-residents. Davis 2 Gen. Stats, ch. 11, § 12, els. 5-7. 

v. Macy, 124 Mass. 193. 3 Wood v. Torrey, 97 Mass. 321. 



118 TOWN AND PARISH OFFICER. 

accordance with the provisions of section twenty-two of chapter 
eleven of the General Statutes. 1 

11. Property held by a religious society as a ministerial 
fund shall be assessed to the treasurer of the society. If 
such property consists of real estate, it shall be taxed in 
the town where it lies ; if it consists of personal property, 
it shall be taxed in the town where such society usually 
hold their meetings. 

12. Personal property mortgaged or pledged shall, for 
the purposes of taxation, be deemed the property of the 
party who has the possession. 2 

This section applies only to corporeal, visible, and tangible prop- 
erty of which either party may take open possession ; and not of 
incorporeal hereditaments or rights, which are incapable of such 
possession — and therefore not to public stocks or securities. 3 

13. Partners in mercantile or other business, whether 
residing in the same or different places, may be jointly 
taxed under their partnership name in the place where 
their business is carried on, for all the personal property 
employed in such business, except ships or vessels. If 
they have places of business in two or more towns, they 
shall be taxed in each of such places for the proportion of 
property employed therein. When so jointly taxed, each 
partner shall be liable for the whole tax. 4 

It seems that the terms " place of business " must be understood 
as a place where business is carried on by the tax-payer under his 
own control and on his own account. 5 

Ships or vessels owned by a copartnership shall be assessed to the 
several partners in their places of residence proportionally to their 
interest therein, if they reside within the commonwealth. But the 
interest of the several partners who reside without the common- 
wealth shall be assessed in the place where their business is car- 
ried on. 6 

14. When any person liable to be taxed for personal property 
shall have changed his domicile, it shall be the duty of the assessors 
of the city or town where he resides to require forthwith of the 

1 Stats. 1878, ch. 189. 4 Gen. Stats, ch. 11, § 15. 

2 Gen. Stats, ch. 11, §§ 13, 14. 5 Little v. Cambridge, 9 Cush. 301. 

3 Waltham Bank v. Waltham, 10 « Stats. 1870, ch. 328. 
Met. 340 ; Hall v. Commissioners, 10 

Allen, 100. 



WHERE POLLS, ETC., SHALL BE ASSESSED. 119 

assessors of the city or town where such person was last taxed as an 
inhabitant, such written statement of any facts within their knowl- 
edge as will assist in determining the value of the personal estate of 
such person, and also the amount he was last assessed in such city or 
town; and such information shall be furnished by the assessors of 
the city or town where he was last taxed or assessed. 

15. When the assessors of any city or town shall have received 
notice from the assessors of any other city or town within the com- 
monwealth, of the amount at which a person having been an inhabi- 
tant thereof was last taxed on personal property, such notice shall be 
filed in their office, subject to public inspection ; and they shall not 
assess such person upon any less amount of personal estate than he 
was last assessed, until he shall have brought into such assessors a 
list of his personal estate, in accordance with the provisions of the 
twenty-second and twenty-third sections of the eleventh chapter of 
the General Statutes. 1 

16. Whenever the assessors of any city or town in this 
commonwealth have assessed a tax upon real estate, and 
such real estate has been subsequently divided by sale, 
mortgage, or otherwise, by the owner or owners thereof, 
or upon a petition for partition, and record of such 
division has been made in the registry of deeds for the 
count}' in which such real estate is situated, it shall be 
the duty of the assessors at any time before said real estate 
has been sold for non-payment of taxes, upon the written 
request of the owner or mortgagee of any portion thereof, 
to apportion said tax and the costs and interest accrued 
thereon, upon the several parcels into which said real es- 
tate has been divided in proportion to the value of each 
parcel thereof, and only the portion of said tax, interest, 
and costs, so apportioned upon any such parcel, shall 
thereafter continue to be a lien upon it, and no one of such 
owners or mortgagees shall thereafter be liable for the tax 
so apportioned upon any parcel not owned in whole or in 
part b} T him at the time of such apportionment. 

17. Notice of the request and of the time appointed for 
such apportionment shall be sent by mail by the assessors 
to all persons interested in said real estate whose addresses 
are known to them. 

i Stats. 1866, ch. 170, §§1,2. 



120 



TOWN AND PARISH OFFICER. 



18. Any person aggrieved by any action of the assessors 
under this act may, within seven days thereafter, appeal 
to the board to which appeal may be "made in case of an 
over-assessment, and the action of said board upon such 
appeal shall be final. 1 

19. All reservoirs of water, with the dams connected 
therewith and the lands under the same, used to maintain 
a uniform supply of water for mill-power, shall be assessed 
for the purposes of taxation in the town or towns where 
located, at a valuation not exceeding a fair valuation of 
land of like quality in the immediate vicinity. 2 This 
statute is unconstitutional and void. 3 

All laws which direct and authorize towns to vote sums for the 
repairs of highways and town-ways, to be paid in labor and materials, 
and which provide for the assessment and collection thereof are 
repealed. 4 

i Stats. 1878, ch. 182. 8 Cheshire v. County Commission- 

2 Stats. 1872, ch. 306. ers, 118 Mass. 386. " 

4 Stats. 1871, ch. 298. 



COLLECTION OF TAXES. 121 



CHAPTER XV. 

COLLECTION OF TAXES. 

1. Towxs may choose suitable persons to be collectors 
of taxes therein. If the persons chosen refuse to serve, or 
if no person is elected or appointed, the constables of the 
town shall be the collectors of taxes. 1 

2. A selectman and assessor of a town may legally be chosen col- 
lector of taxes also.'- The refusal to accept the office need not 
appear of record. And no further oath is required of a constable, 
acting as collector, if he has been duly sworn as constable. 3 

3. Every collector shall give bond to the town, in such 
sum as the selectmen require, and with sureties to their 
satisfaction, for the faithful discharge of the duties of his 
office. 4 

4. When a collector fails to give the bond required by the preced- 
ing section, the selectmen may appoint another collector in the 
manner and subject to the provisions set forth in ch. 18, § 42, Gen. 
Stats. 5 

5. The foregoing provisions of the statute are directory as to the 
manner of giving bonds by one appointed collector. And the collec- 
tor may properly refuse to give a bond in any greater sum than the 
selectmen require. But if a collector voluntarily gives a bond to the 
town to secure his faithful discharge of the duties of the office of col- 
lector, and the same is accepted, it is a good and valid bond without 
any further evidence of the approval by the selectmen, of the sum or 
the sureties, 6 but the bond should be given to the town. 7 

6. The removal of the collector from office does not discharge him 
from liabilities that have already attached for defaults in the duties 
of his office. In all cases where, by reason of his remissness in en- 
forcing the collections, the tax has been uncollected, and from a 

i Gen. Stats, ch. 18, § 71. 5 stats. 1865, ch. 234, § 1. 

2 Howard v. Proctor, 7 Gray, 128. 6 Wendell v. Fleming, 8 Gray, 613. 

8 Havs v. Drake, 6 Grav, 387. 7 Stevens v. Hay, 6 Cush. 229. 
* Gen. Stats, ch. 18, § 72. 



122 TOWN AND PARISH OFFICER. 

change of circumstances is unavailable in the hands of his successor, 
he will be chargeable therewith. 1 

7. Defects in a warrant or tax list will not excuse a collector from 
paying over money to the town which he has collected without objec- 
tion on the part of the tax-payers. He can only avail himself of such 
defects as have prevented him from performing his duty; and the 
defects in the warrant or tax list might be a good excuse for not exe- 
cuting the warrant. 2 Nor is a collector excused from paying over 
money to the town by reason of its being stolen from him without any 
default on his part. 3 

8. Any town, at a meeting notified for that purpose, may 
authorize their collector to use all means of collecting the 
taxes which a town treasurer when appointed collector may 
use. 4 

9. Every collector of taxes, constable, sheriff, or deputy 
sheriff, receiving a tax list and warrant from the assessors, 
shall proceed to collect the taxes therein mentioned, accord- 
ing to the warrant. 5 

If the warrant is good upon its face, it will protect the collector 
acting under it notwithstanding irregularity in the meetings or votes 
by which the taxes were authorized. 6 

10. The collector shall, unless removed from office as 
hereinafter provided, complete the collection of taxes com- 
mitted to him, although his term of office expires before 
such completion. 

11. Collectors shall, before distraining the goods of a 
person for his tax, demand payment thereof from such 
person, either personally or at his usual place of abode, 
if to be found within their precincts. 

12. When the credit of a person taxed is considered 
doubtful by the assessors, they may (by a special war- 
rant) 7 order the collector forthwith to compel payment by 
distress or imprisonment, whether the tax is made payable 
immediately, at a future day, by instalments, or otherwise. 

13. If a person claims the benefit of an abatement, he 

i Colerain v. Bell, 9 Met. 499. * Gen. Stats, ch. 18, § 73. 

2 Sandwich v. Fish, 2 Gray, 298. 5 Gen. Stats, ch. 12, § 1. 

3 Hancock v. Hazard, 12 Cush. 6 Howard v. Proctor, 7 Gray, 128. 
112. 7 stats. 1874, ch. 238. 



COLLECTION OF TAXES. 123 

shall exhibit to the collector demanding his taxes a cer- 
tificate of such abatement, from the assessors or other 
proper officer, as provided in chapter eleven ; and shall be 
liable to pay all costs and officers' fees incurred before 
exhibiting such certificate. 

14. If, in the assessors' lists or in their warrant and list 
committed to the collectors, there is an error in the name 
of a person taxed, the tax assessed to him may be collected 
of the person intended to be taxed, if he is taxable and 
can be identified by the assessors. 1 

This section applies to those cases where the error in the name 
exists as well in the valuation list as in the assessors' warrant to 
the collector ; and it covers all cases of error in the name, and seems 
intended to apply to a case where the name is mistaken by omitting, 
as well as by adding or by misnaming. 2 

15. If a person refuses or neglects to pay his tax, the 
collector shall levy the same by distress or seizure and sale 
of his goods, including any share or interest he may have 
as a stockholder in a corporation incorporated under au- 
thority of this commonwealth, and excepting the following 
goods : — 

The tools or implements necessary for his trade or occu- 
pation ; beasts of the plough necessary for the cultivation 
of his improved lands ; military arms, utensils for house- 
keeping necessary for upholding life, and bedding and 
apparel necessary for himself and family. 3 

But the distress cannot be made after the death of the person upon 
whom the tax is assessed. 4 

16. The collector shall keep the goods distrained, at the 
expense of the owner, for four days at least, and shall, 
within seven days after the seizure, sell the same by public 
auction, for payment of the tax and charges of keeping 
and sale, having given notice of the sale by posting up a 
notification thereof in some public place in the city or town, 
forty-eight hours at least before the sale. 5 

i Gen. Stats, ch. 12, §§ 2-6. 3 Gen. Stats, ch. 12, § 7. 

2 Tvler v. Hardwich, 6 Met. 474, 4 Wilson v. Shearer, 9 Met. 504. 
Shaw[ C. J. 6 Gen. Stats, ch. 12, § 8. 



124 TOWN AND PARISH OFFICER. 

17. A sale made after seven days is illegal. 1 The notice may 
be given before the expiration of four days, a proper time for sale 
being fixed upon. 2 The notice need not state the name of the person 
whose property is seized, nor the amount of the tax, nor describe the 
property. 2 

18. The collector may once adjourn such sale for a time 
not exceeding three days : he shall forthwith give notice 
of such adjournment, by posting a notification at the place 
of sale. 

19. The seizure of a share or other interest in a corpo- 
ration may be made by leaving with any officer of the cor- 
poration, with whom a copy of a writ may by law be left 
when the share of a stockholder is attached on mesne pro- 
cess, an attested copy of the warrant, with a certificate 
thereon, under the hand of the collector, setting forth the 
tax which the stockholder is to pay, and that, upon his 
neglect or refusal to pay, the collector has seized such 
share or interest. 

20. The sale of such share or interest shall be made in 
the manner prescribed by law for the sale of goods by 
collectors of taxes in like cases, and also subject to the 
provisions of sections forty-six and forty-seven of chap- 
ter one hundred and thirty-three, respecting sales on exe- 
cutions. 

21. If the distress or seizure is sold for more than the 
tax and charges of keeping and sale, the collector shall 
return the surplus to the owner, upon demand, with an 
account in writing of the sale and charges. 3 

22. A collector is justified in adding to these charges a commis- 
sion or percentage on the amount of the tax for his own compensa- 
tion. 4 And see, as to collectors' fees, section eighty-two of this 
chapter. 

23. If a person refuses or neglects for fourteen days 
after demand to pay his tax, and the collector cannot find 
sufficient goods upon which it may be levied, he may take 

1 Noyes, Jr. v. Haverhill, HCush. 8 Gen. Stats, ch. 12, §§ 9-12. 
338. 4 Howard v. Proctor, 7 Gray, 132. 

2 Barnard v. Graves, 13 Met. 94. 



COLLECTION OF TAXES. 125 

the body of such person and commit him to prison, there 
to remain until he pays the tax and charges of com- 
mitment and imprisonment, or is discharged b}^ order of 
law. 1 

24. This applies to non-residents as well as residents. 2 But the 
collector has no right to take the body for non-payment of taxes, if 
sufficient property is shown to him upon which to levy ; although 
fourteen days have elapsed since a demand of payment. 3 

25. When the collector commits a person to prison, he 
shall give the keeper thereof an attested copy of the war- 
rant, with a certificate thereon, under the hand of the col- 
lector, setting forth the sum which such person is to pay as 
his tax, with the cost of taking and committing him, and 
that upon his having neglected payment for fourteen days, 
or otherwise, as the case may be, and for want of goods 
whereof to make distress, he has taken his body. 

26. When a person committed to prison for the non- 
payment of taxes is unable to pay the same, he shall be 
entitled to his discharge in like manner as persons com- 
mitted on execution. The notice required in such case 
to be given to the creditor may be given to either of the 
assessors or the collector by whom the party was com- 
mitted. And the assessors and collector, or any of them, 
may appear and do all things which a creditor might do in 
case of arrest on execution. 4 

For further provision as to discharge of persons committed to 
prison, see section eighty-one of this chapter. 

27. If such person is discharged, the collector shall be 
liable to pa} T the tax with the charges of imprisonment, 
unless he arrested and committed the party within one 
year after the tax was committed to him to collect, or 
unless he is exonerated therefrom by the city, town, or 
parish to which the tax is due. 5 

But this does not render the collector liable to pay for the support 

1 Gen. Stats, ch. 12, § 13. 4 Gen. Stats, ch. 12, §§ 14, 15. 

2 Snow v. Clark, 9 Gray, 192. 5 Gen. Stats, ch. 12, § 16. 
8 Lothrop v. Ide, 13 Gray, 93. 



126 TOWN AND PARISH OFFICER. 

of the person committed while in jail, although the town may have 
paid it. 1 

28. A collector when resisted or impeded in the exercise 
of his office may require any suitable person to aid him 
therein ; and, if such person refuses to render such aid, he 
shall forfeit a sum not exceeding ten dollars. 

29. AVhen a person, after the assessment of a tax upon 
him, removes out of the precinct of the collector without 
paying his tax, the collector ma}' demand payment thereof 
wherever such person is found ; and in default of payment 
the collector may forthwith proceed to collect the tax by 
making a distress, or by commitment of such person to the 
prison of the county where lie is found ; or the collector 
may issue his warrant to the sheriff of the county or his 
deputy, or to any constable of the place, w T here such per- 
son is found, directing them to distrain the property or 
take the bod}' of such person, and to proceed therein in 
like manner as required of collectors in like cases. 2 

30. To constitute " removal," it is not necessary to change one's 
domicile, technically speaking, but a change of place of residence for 
the term of six months, although under the expectation and purpose 
of returning at the expiration of that time, is a " removal." 3 

31. When a person taxed removes as aforesaid, or dies, 
or neglects to pay his tax for one year after it is com- 
mitted to the collector, or, being an unmarried woman, 
marries before payment of the tax, the collector may, in 
his own name, maintain an action of contract therefor, in 
like manner as for his own debt ; and he may for that pur- 
pose in like manner have a process of foreign attachment 
against any trustee of such person. 4 

It would be well that the warrant of the collector authorized by 
this section should recite the facts which are necessary to authorize 
the collector to issue it because it would then furnish the constable 
with conclusive evidence for his protection in acting under it. But 
the recital is not necessary to the validity of the warrant. 5 

1 Townsend v. Walcutt, 3 Met. 152. * Gen. Stats, ch. 12, § 19. 

2 Gen. Stats, ch. 12, §§ 17, 18. 5 Cheever v. Merritt, 5 Allen, 565. 

3 Houghton v. Davenport, 23 Pick. 
240. 



COLLECTION OF TAXES. 127 

32. When a tax is assessed upon the personal estate of 
a deceased person, the collector may maintain an action of 
contract therefor in his own name, as for his own debt, 
against the executor or administrator ; and, if a tax is so 
assessed before the appointment of an executor or admin- 
istrator, he may enforce it against the estate and its repre- 
sentative after such appointment, in like manner as if the 
assessment had been made subsequently thereto. 

33. When a person is taxed for real estate in his occu- 
pation, but of which he is not the owner, the collector, 
after demand of payment. may levy the tax by distress and 
sale of the cattle, sheep, horses, swine, or other stock or 
produce, of such estate, belonging to the owner thereof, 
which within nine months after such assessment is com- 
mitted to him shall be found upon the premises, in the 
same manner as if such stock or produce were the prop- 
erty of the person so taxed ; but such demand need not be 
made if the person on whom the tax is assessed resided 
within the precinct of the collector at the time of the assess- 
ment, and subsequently removes therefrom and remains 
absent three months. 

Any joint tenant or tenant in common of land whose tax shall 
have been paid by hifl eotenant shall have the' same right in regard 
to recovering hack taxes illegally assessed that he would have had if 
the tax had been paid under a protest by him in writing. 1 

34. Taxes assessed on real estate shall constitute a lien 
thereon for two years after they are committed to the col- 
lector ; and may with all incidental costs and expenses be 
levied by sale thereof, if the tax is not paid within fourteen 
days after a demand of payment made either upon the per- 
son taxed or upon any person occupying the estate ; but 
the collector may sell real estate for taxes after two years 
have elapsed, unless the estate has been alienated (prior to 
the giving of the notice of such sale). 2 

35. Taxes reassessed on real estate shall constitute a 
lien thereon from the time they are committed to the col- 
lector, unless the estate has been alienated between the 

i Stats. 1875, ch. 236, § 1. 2 Stat 



128 TOWN AND PARISH OFFICER. 

first and second assessments ; and may be levied as pro- 
vided in the preceding section. 

36. If a mortgagee of real estate, situated in the place 
of his residence, previously to the assessment of a tax, 
gives written notice to the clerk of such place that he 
holds a mortgage thereon, with a description of the estate, 
the collector before proceeding to sell it for non-payment 
of taxes shall demand payment of said taxes of the mort- 
gagee, as provided in section twenty- two. 

37. If a mortgagee or non-resident owner of real estate, 
previously to the assessment of a tax, gives a written 
authority to some inhabitant of the place as his attorney, 
to pay the taxes imposed on such estate, and the authority 
is filed with, or recorded by, the clerk of the place, the 
demand of pa} T ment shall be made upon such attorney 
before the estate is sold ; otherwise, no demand need be 
made of payment of taxes assessed on the real estate of 
non-resident owners. 1 

38. When a demand is made upon the attorney under 
the preceding section, the collector shall not advertise the 
sale of the lands, until two months from the time of such 
demand. 

39. The affidavit of a disinterested person, or the col- 
lector, who makes a sale of land for the payment of taxes, 
taken before a justice of the peace and recorded by the 
clerk of the place where the land lies, before a sale is 
made, and stating the demand of payment of the tax, the 
person of whom, and the time and manner in which it was 
made, shall be competent evidence of the demand. 

40. The collector shall give notice of the time and place 
of sale of real estate taken for taxes, by an advertisement 
thereof three weeks successively in some newspaper of the 
county where the real estate lies, if there is such newspaper, 
and if not, then in a newspaper printed in an adjacent 
count}' ; the last publication to be at least one week before 
the time of sale. 

41. The advertisement shall contain a substantially 

i Gen. Stats, ch. 12, §§ 20-25. 



COLLECTION OF TAXES. 129 

accurate description of the several rights, lots, or di- 
visions of the estate to be sold, the amount of the tax 
assessed on each, the names of all owners known to the 
collector, and the taxes assessed on their respective 
lands. 1 

42. The description should be full and satisfactory, so that the 
owner may know what property is to be sold and especially if the 
owner's name does not appear in the notice. 2 And the amount of 
the tax must be stated exactly. 3 

43. The collector shall, three weeks before the sale, 
post a notice similar to that required by the two preceding- 
sections in some convenient and public place in his pre- 
cinct, and a like notice on the premises by him advertised 
to be sold, if any part thereof is bounded by a street, lane, 
court, or highway. 

44. When real estate to be sold under the provisions 
of this chapter is situated in a place the name of which 
has been changed by law within three years next preceding 
the sale, the collector shall in his advertisement and notices 
of the sale designate such place by its former and present 
name. 

45. The affidavit of a disinterested person, taken before 
a justice of the peace, of the posting and publishing noti- 
fications of the sale of real estate by a collector or other 
officer for payment of taxes, made upon one of the original 
advertisements, or a copy thereof, and filed and recorded 
in the registry of deeds of the county or district where the 
land lies, within six months after the sale, shall be com- 
petent evidence of such notice. 

46. If the taxes are not paid, the collector, at the time 
and place appointed for the sale, shall sell by public auction 
so much of the real estate, or the rents and profits of the 
whole estate for such term of time, as shall be sufficient 
to discharge the taxes and necessary intervening charges ; 
or he may at his option sell the w^hole or any part of the 
land ; and after satisfying the taxes and charges, he shall 

1 Gen. Stats, ch. 12, §§ 26-29. 3 Alexander v. Pitts, 7 Cush. 503. 

2 Farnum v. Buffum, 4 Cush 266. 



130 TOWN AND PARISH OFFICER. 

upon demand pay the residue of the proceeds of the sale, 
if any, to the owner of the estate. 1 

This section does not authorize the sale of an individual interest in 
land, and an advertisement of a collector of taxes, which offers for 
sale a certain parcel of real estate, "or such undivided portions 
thereof as may be necessary," invalidates a sale thereunder, although, 
in fact, the whole parcel is sold. 2 

As to amount of fees and as to right of town to purchase, see 
sections eighty-two and seventy-three of this chapter. 

47. The collector may adjourn his sale from day to day 
not exceeding seven days in the whole ; and he shall give 
notice of every such adjournment by a public declaration 
thereof, at the time and place previously appointed for 
the sale. 

48. The collector shall execute and deliver to the pur- 
chaser a deed of the real estate, or rents and profits sold ; 
which deed shall state the cause of sale, the price for which 
the estate or rents and profits were sold, the name of the 
person on whom the demand for the tax was made, the 
places in the city or town where the notices were posted, 
the newspaper in which the advertisement of such sale was 
published, and the place of residence of the grantee ; and, 
if the real estate has been sold, shall convey, subject to 
the right of redemption provided for in the following sec- 
tion, all the right and interest which the owner had therein 
at the time when the same was taken for his taxes. Such 
deed to be valid shall be recorded within thirty days from 
the day of sale. 3 

49. The deed of a collector, taking effect only as the execution of 
a statute power, should be construed with some strictness, and the 
description should be such as to enable the grantee to identify the 
land and the owner to redeem it. 4 The deed must state the cause of 
sale : it is a condition precedent to the operation of the deed. It is 
not enough to state that a demand for the tax was made upon the 
person taxed, but it must also state that payment was not made 
within fourteen days. 5 

1 Gen. Stats, ch. 12, §§ 30-33. 4 Hill v. Mowry, 6 Gray, 552. 

2 Wall v. Wall, 124 Mass. 65. 6 Harrington v. Worcester, 6 Al- 
8 Gen. Stats, ch. 12, §§ 34, 35. len, 577. 



COLLECTION OF TAXES. 131 

50. The owner of real estate taken or 1 sold for payment 
of taxes, or his heirs or assigns, may within two years 
from the day of (taking or *) sale, redeem the estate taken 
or 1 sold, by paying or tendering to the collector the 
amount of the tax for which said property was taken, with 
the charges and fees provided in section eleven of this act, 
and all intervening taxes, or to the purchaser, his heirs or 
assigns, the original sum and intervening taxes paid by 
him, and in each case with ten per cent interest, and the 
cost of recording the tax deed or evidence of taking, and 
the sum of five dollars for examination of title ; 2 and when 
the rents and profits are sold for paj'ment of taxes, the 
same may be redeemed at any time within two years in the 
manner provided for the redemption of rents and profits 
taken on execution. And in the following cases real 
estate so taken or 2 sold may be redeemed, by any person 
having such title thereto that he might have recovered the 
same if no such taking or 2 sale had been made, at any 
time within two years after he has actual notice of the 
sale : — 

First. When no person is named in the tax list as the 
owner or occupant of the premises, they being taxed as 
belonging to persons unknown ; 

Second. When the person who is named in said list is 
merely a tenant or occupant of the premises, and not the 
rightful owner thereof ; 

Third. When there is any error in the name of the per- 
son intended to be taxed ; 

Fourth. Mortgagees of record. 8 

51. A party in possession of land under a contract for its purchase 
which stipulates that during the continuance of the contract he should 
remain in possession has such an interest in the land as gives him 
a right to redeem. 4 " Mortgagees of record " include or extend to 
assignees of a mortgage. 5 

52. If upon reasonable search the purchaser of real 
estate sold for non-payment of taxes cannot be found in 

1 Stats. 1878, ch. 266. 4 Rogers v. Rutter, 11 Gray, 413. 

2 Stats. 1878, ch. 266. 5 Faxon v. Wallace, 98 Mass. 45. 
8 Gen. Stats, ch. 12, § 36. 



132 TOWN AND PARISH OFFICER. 

the place of which he is described in the collector's deed as 
resident, the owner of the estate may redeem it as pro- 
vided in the preceding section, on pa}ing to the treasurer 
of the place in which it is situated the amount which he 
would be required to pay to the purchaser ; and the affi- 
davit of any disinterested person of the making such 
search, taken before a justice of the peace and filed in the 
registry of deeds for the district or county in which the 
land is situated, within ninety days from the completion of 
the search, shall be competent evidence of the facts therein 
stated. 

53. Such treasurer shall receive the money and give to 
the person paying it a certificate of such payment, specify- 
ing the estate on which the tax was originally assessed. 
The certificate may be recorded in the registry of deeds, 
with a note of reference from such record to the collector's 
deed; and, when so recorded, shall have the effect to 
release and discharge all right and title acquired under the 
collector's deed. The treasurer shall hold all money re- 
ceived by him under the preceding section, for the use and 
benefit of the persons entitled thereto ; and shall pay it 
over on reasonable demand. 

54. After proceedings have been commenced for the 
(taking or x ) sale of real estate for a tax assessed thereon, 
and before the (taking or *) sale is made, the holder of any 
mortgage thereon may pay such tax with all intervening 
charges and expenses ; and when the owner of real estate 
for three months after demand has neglected to pay such 
a tax, and the collector has made demand therefor upon 
a holder of a mortgage thereon, such holder may in like 
manner pay such tax, charges, and expenses. 

55. The holder of a mortgage, upon taking possession 
of real estate thereunder, shall be liable to pay all taxes 
due thereon and the expenses of any (taking or x ) sale 
for taxes that has been commenced or taken place ; 
to be recovered of him in an action of contract by the 
collector, or, when a sale has taken place, by the pur- 

1 Stats. 1878, ch. 266. 



COLLECTION OF TAXES. 133 

chaser ; and upon tender by the mortgagee to the (col- 
lector or the *) purchaser, within the time provided for 
owners of real estate to make tender in section thirty-six 
(section fifty above) (to the collector the amount of the 
tax for which said property was taken, with the charges 
and fees provided in section eleven of this act, and all 
intervening taxes, or to the purchaser, his heirs or assigns, 
the original sum and intervening taxes paid b} T him, and 
in each case with ten per cent interest and the cost of re- 
cording the tax deed or evidence of taking, and the sum 
of five dollars for examination of title *) , (the city or town 
or *) such purchaser shall at the expense of the mortgagee 
execute and deliver to him a valid deed of assignment of 
all interest acquired by virtue of the tax sale. 2 

This applies to mortgages made before the passage of the statute, 
June 1, 1860, where the mortgagee has taken possession subse- 
quently. 3 

56. For all sums paid to a collector by the holder of a 
mortgage under either of the two preceding sections, the 
collector shall upon demand give him a receipt therefor, 
duly acknowledged ; and such sums shall be added to and 
constitute part of the principal sum of the mortgage ; and 
the mortgage shall not be redeemed, without the consent 
in writing of the holder, until such sums and interest 
thereon are paid ; and such receipt recorded in the registry 
of deeds for the district or county where the land lies, 
within thirty days from its date, shall be notice to all per- 
sons of the payment of such sums and the lien upon the 
estate therefor. 

57. In all cases of (taking or 1 ) sale of real estate for 
the payment of taxes assessed thereon, the supreme judi- 
cial court shall have equity powers, if relief is sought 
within five years from the (taking or x ) sale. 

58. When the tax list and warrant of the assessors is 
committed to the sheriff or his deputy, he shall forthwith 

1 Stats. 1878, ch. 266. 3 Andrews v. Worcester County 

2 Gen. Stats, ch. 12, §§ 37-40. Mutual Fire Ins. Co., 5 Allen, 66. 



134 TOWN AND PARISH OFFICER. 

post in some public place in the city or town assessed an 
attested copy of said list and warrant ; and shall make no 
distress for a tax, till after thirty days from the time of 
such posting. 

59. If a person pays his tax on such list within said 
thirty days, the officer shall receive for his fees five per 
cent on the sum assessed ; but if a tax remains unpaid 
after said thirty daj's, the officer shall proceed to collect 
the same by distress or imprisonment, in the manner col- 
lectors are required to proceed in like cases. The officer 
ma} r also levy his fees for service and travel, in the collec- 
tion of each person's tax, as in other cases of distress and 
commitment. 

60. When the city council of a city or the inhabitants 
of a town vote to appoint their treasurer a collector, he 
may issue his warrants to the sheriff of the county, or his 
deputy, or any of the constables of the city or town, re- 
turnable in thirty cla}~s, requiring them to collect any or 
all taxes due ; and such warrants shall be in substance the 
same and confer like powers as warrants issued by asses- 
sors to collectors. 

61. Every collector shall once in two months, if required, 
exhibit to the mayor and aldermen or selectmen, and 
where there are no such officers, to the assessors, a true 
account of all mone} T s received on the taxes committed to 
him, and produce the treasurer's receipts for all money 
paid into the treasury by him. 

62. If a collector neglects so to exhibit his accounts, he 
shall forfeit the sum of two and a half per cent on the 
sums committed to him for collection. 

63. The collector shall be credited with all sums abated 
according to law, and with the amount of taxes assessed 
upon any person committed to prison within one year from 
the receipt of the tax list by the collector, and before pay- 
ing his tax, and also with any sums which the city or town 
may see fit to abate to him, due from persons committed 
after the expiration of a year. 

64. If the collector fails to collect a tax without his own 



COLLECTION OF TAXES. 135 

default, and there is a deficiency of the amount due on a 
state or count}^ tax, such deficiency shall be supplied by 
him from the proceeds of the collection of city or town 
taxes, if any in his hands ; and, if he have none, by the 
city or town treasurer, on the written requisition of the 
collector. 

65. If a collector of taxes neglects to pay, within the 
time required by law, such sums of money as ought by 
him to be paid to the state or county treasurer, the city or 
town by which such collector was appointed shall be liable 
for such sums, to be recovered in an action of contract by 
such state or county treasurer respectively. 

6G. If a collector neglects seasonably to pay a state or 
count}^ tax committed to him, whereby the city or town is 
compelled to pay the same, or neglects seasonably to ac- 
count for and pay in a city or town tax committed to him, 
the city or town may recover the amount thereof, with all 
damages sustained through such neglect, and interest, by 
an action of contract, declaring on his official bond if any 
has been given. 

67. If a collector becomes insane, or in the judgment 
of the selectmen otherwise unable to discharge his duty, 
or absconds, removes, or in the judgment of the selectmen 
is about to remove, from the place, or refuses on demand 
to exhibit to the mayor and aldermen, or selectmen, or as- 
sessors, his accounts of collections, as herein provided, 
the selectmen may remove him from office and appoint 
another collector as in case of the death of the collector. 

68. If a collector dies before completing the collection 
of a tax committed to him, the selectmen may appoint 
some suitable person to complete the collection, who shall 
receive a reasonable compensation, to be paid by the town, 
and they may commit the same tax list to him, with their 
warrant, accordingly ; and when a temporaiy collector is 
appointed by the selectmen, the assessors shall commit the 
tax list to him with their warrant, and he shall have the 
same powers and be subject to the same duties and liabili- 
ties as other collectors. 



136 TOWN AND PARISH OFFICER. 

69. In case of the death or removal from office of a col- 
lector, his executors or administrators, and all other per- 
sons into whose hands any of his unsettled tax lists may 
come, shall forthwith deliver the same to the selectmen. 

70. Collectors shall be paid such compensation for their 
services as their cities or towns shall determine. (See 
this chapter below in reference to fees.) 

71. No tax paid to a collector shall be recovered back, 
unless it appears that it was paid after an arrest of the 
person paying it, a levy upon his goods, a notice of sale 
of his real estate, or a protest by him in writing ; and the 
damages awarded in a suit or process based upon any error 
or illegality in the assessment or apportionment of a tax 
shall not be greater than the excess of the tax above the 
amount for which the plaintiff was liable to be taxed. 
And no sale, contract, or levy shall be avoided by reason 
of any such error or irregularity. 1 

72. Whenever a town has fixed a time within which 
taxes assessed therein shall be paid, such town, at the 
meeting when money is appropriated or raised, may vote 
that on all taxes remaining unpaid after a certain time 
interest shall be paid at a specified rate, not exceeding one 
per centum per month ; and may also vote that, on all 
taxes remaining unpaid after another certain time, interest 
shall be paid at another specified rate, not exceeding one 
per centum per month ; and the interest accruing under 
such vote or votes shall be added to and be a part of such 
taxes. 2 

73. If at the time and place appointed for the sale of 
real estate taken for taxes, as provided in the thirty-third 
section of the twelfth chapter of the General Statutes 
(section forty-six above) , no person shall appear and bid 
for the estate thus offered for sale, or the rents and profits 
thereof, or for the whole or any part of the land, an amount 
equal to the tax and charges, and the sale shall have been 
adjourned from day to day, as provided in the thirty- fourth 
section of the said chapter (section fort3~-seven above) , a 

1 Gen. Stats, ch. 12, §§ 41-56. 2 Stats. 1873, ch. 225. 



COLLECTION OF TAXES. 137 

public declaration of the fact shall then and there be made 
by the collector ; immediately after which, provided no 
bid shall be made equal to the tax and charges, the col- 
lector shall give public notice that he shall, and that he 
then and there does, purchase on behalf of the town or 
city by which the tax is assessed, the said estate, in one 
of the forms set forth in the thirty-third section of said 
chapter (section forty-six above) : provided, however, that 
no sum exceeding the amount of the tax and the incidental 
costs and expenses of levy and sale shall be offered by him 
therefor. 

74. The deed to be given by the collector in such case 
shall, in addition to the statements b} r law required, set 
forth the fact of the non-appearance of a purchaser at the 
sale advertised by him, and shall confer upon such town 
or cit}^ the same rights as belong to an individual to whom 
such a deed may be given. And the several towns and 
cities of this commonwealth, in their corporate capacity, 
are hereb} T authorized, as holders of said deeds, to exercise 
the same rights and perform the same duties as any indi- 
vidual purchaser of real estate taken for taxes. 

75. If within ten days after the sale of real estate for 
the payment of taxes, any purchaser thereof shall fail to 
pa}' to the collector the sum offered by him, and receive 
his deed, the sale shall be null and void, and the town or 
city shall be deemed to be the purchaser of the estate ac- 
cording to the provisions of this act. And the deed to be 
given by the collector in such case shall, in addition to 
the statements now required by law, set forth the fact 
of the preceding sale, and the failure of the purchaser to 
pay the sum offered as aforesaid. 

76. The deed given to a town or city under the provi- 
sions of this act shall be placed in the custody of the treas- 
urer thereof, to whom all applications for the redemption 
of the estate sold, under the provisions of law, shall be 
made. And the several towns and cities of the common- 
wealth may make such regulations for the custody, man- 
agement, and sale of such estates, and the assignment of 



188 TOWN AND PARISH OFFICER. 

the tax titles thus obtained, not inconsistent with the laws 
of the commonwealth, as they ma} r deem expedient. But 
nothing herein contained shall take from the owner of said 
real estate, or his heirs or assigns, the right to redeem the 
same, as provided in section thirty-six, chapter twelve, of 
the General Statutes (section fifty above) . 

77. The amount of the tax and all incidental costs and 
expenses of levy and sale provided for by law, which shall 
be included in an} T sale in accordance with the provisions 
of this act, shall be allowed the collector in his settlement 
with such town or city. 

78. In the deed .which the collector shall execute and 
deliver, as provided in section thirty-five of chapter twelve 
of the General Statutes (section forty-eight above) , there 
shall also be inserted a special warranty that the sale has 
in all particulars been conducted according to the pro- 
visions of law ; and, if it should subsequently appear that, 
by reason of any error, omission, or informality, in any of 
the proceedings of assessment or sale, the purchaser has 
no claim upon the property sold, there shall be paid to said 
purchaser, upon his surrender and discharge of the deed so 
given, by the town or city whose collector executed said 
deed, the amount paid by him, together with ten per cent 
interest per annum on the same, which shall be in full sat- 
isfaction of all claims for damages for any defect in the 
proceedings (provided the said purchaser shall, within two 
years from the date of said deed, in writing, offer to sur- 
render and discharge the same, or to assign and transfer 
to the town Or city all his right, title, and interest therein, 
as the collector thereof shall elect *) . 

79. If the owner does not redeem the property so pur- 
chased by the city or town within the time prescribed by the 
thirty-sixth section of the twelfth chapter of the General 
Statutes (section fifty above), said town or city may at 
any time proceed to sell the said real estate at public 
auction, after having given the same notice as is required 
in section twenty-eight, chapter twelve, of the General 

i Stats. 1878, ch. 266. 



COLLECTION OF TAXES. 139 

Statutes (section forty above) , executing and delivering to 
the highest bidder therefor a quitclaim deed ; and from 
the money arising from said sale shall be deducted the ex- 
penses of making the sale, together with the amount paid 
at the first sale for tax and charges, with ten per cent 
interest per annum thereon, and all intervening taxes and 
necessary charges ; and the balance, if any, shall be de- 
posited in the city or town treasury to be paid to the party 
legally entitled to the estate if the same had not been sold 
for taxes, if the same shall be called for within five 3-ears ; 
and if not demanded within that time the same shall enure 
to the benefit of said city or town. 

80. If any estate shall be purchased by any city or town, 
according to the provisions of this act, taxes shall be 
assessed upon the same in the same manner as though the 
same were not so purchased ; and said taxes shall be 
deducted from the proceeds of the final sale, as provided 
in the previous section. 

81. When a person committed to prison for non-pay- 
ment of taxes desires to take the oath for the relief of poor 
debtors, as provided in section fifteen, chapter twelve, of 
the General Statutes (section twenty-six above) , he may 
represent the same to the jailer, and the jailer shall make 
the same known to some magistrate named in section one, 
chapter one hundred and twenty-four, of the General 
Statutes, and the magistrate shall thereupon appoint a 
time and place for the examination of the debtor, and 
shall direct the jailer to cause the debtor to be present 
at the same, and shall further proceed as directed in said 
section fifteen of said chapter twelve. 

82. The following charges and fees, and no other, shall 
be allowed to the collector, and shall be added to the 
amount of the tax, as provided in section thirty-three, of 
chapter twelve, of the General Statutes : — 

For making a written demand, twenty cents ; 
For preparing advertisement, fifty cents ; 
For advertisement in newspaper, the actual cost of the 
same ; 



140 TOWN AND PARISH OFFICER. 

For posting up notices in one or more public places, 
twenty cents for (such service *) ; 

For posting up notices on each piece of real estate, 
twenty cents ; 

For copy of notice, and the publication thereof, and 
obtaining affidavit of disinterested person, fifty cents ; 

For recording affidavit at registry of deeds, the fees of 
the register ; 

For preparing deed, two dollars ; 

And in the event that any delinquent tax-payer offers 
to pay the tax before the day of sale (or taking *) , such 
charges shall be added to the tax as have intervened at the 
time of said offer to pay. 

No sale heretofore made of real estate taken for taxes shall be 
held invalid by reason of the notice of sale having contained the 
words " or such undivided portions thereof as may be necessary," or 
the words "or such undivided portions of them as may be neces- 
sary : " provided, however, that this act shall not apply to any case 
wherein proceedings at law or in equity have been commenced involv- 
ing the validity of such sale, nor to any real estate which has been 
alienated since the eighth day of February of the current year and 
before the passage of this act, 2 May sixth, eighteen hundred and 
seventy-eight. 

83. County, city, and town taxes are entitled to the same priority 
or preference as state taxes are now entitled to, in cases of insolvent 
debtors. 3 

84. Whenever the collector of taxes in any city or town 
has reasonable cause to believe that the title created by 
any deed given in consequence of a sale for non-payment 
of taxes, or of any assessment, a lien for which is enforce- 
able by sale of real estate, is invalid by reason of any 
error, omission, or informality in any of the proceedings of 
assessment or sale, he may, within two }~ears from the date 
of said deed, or in the case of existing deeds within two 
years from the passage of this act, give notice to the per- 
son who appears by the records in the registry of deeds of 
the county or district wherein the city or town lies, to be 

i Stats. 1878, ch. 266. 3 stats. 1862, ch. 183, §§ 1-11. 

2 Stats. 1878, ch. 229. 



COLLECTION OF TAXES. 141 

the holder of such title, requiring him within thirty days 
to surrender and discharge the deed so given, and to receive 
from the city or town the sum due therefor, with interest, 
as provided by law, or to file with the collector a written 
statement that he refuses to make such surrender or dis- 
charge ; and such statement shall be deemed an absolute 
release of the city or town from any liability whatever upon 
the warranty contained in said deed. 

85. The notice required by the preceding section shall 
be served in the manner prescribed by law for the service 
of summonses for witnesses in civil cases ; but in case the 
holder has no place of abode in, or cannot be found in, the 
city or town, it shall be served by mail, or by publication 
one week in some newspaper published in the county where- 
in the cit}' or town lies ; or, if there be none such, in some 
newspaper published in an adjacent county. If the holder 
fails to comply with such notice the collector shall, upon 
the expiration of thirty days from the service thereof, 
cause a cop}^ of the notice, with an affidavit by himself or 
a disinterested person, of the service thereof, taken before 
a justice of the peace, to be filed and recorded in the regis- 
try of deeds of the county or district wherein the city or 
town lies. A note of reference to the record of said copy 
shall be made on the margin of the record of the collector's 
deed therein referred to ; and from the time of such record 
the interest payable by law in respect of such deed shall 
cease, and said copy when so recorded shall have the effect 
to release and discharge all right and title acquired under 
such deed. The collector shall notify the treasurer of the 
cit} r or town, who shall appropriate out of any funds in his 
hands the amount due in respect of said deed for the use 
and benefit of the persons entitled thereto, and shall pay it 
over on reasonable demand. 

86. If the invalidity of any deed so recalled by the col- 
lector arose by reason of any error, omission, or informality 
in an}- of the proceedings of assessment, the collector, after 
obtaining a surrender and discharge of the deed from the 
holder, or causing a copy of the notice to be filed and 



142 TOWN AND PARISH OFFICER. 

recorded as provided in the preceding section, shall forth- 
with notify the board by whom the tax or assessment was 
laid, who shall immediately reassess the same as provided 
by section fifty- three of chapter eleven of the General Stat- 
utes. If such invalidity, however, arose by reason of any 
error, omission, or informality in any of the proceedings of 
the collector, he shall, after obtaining a surrender and dis- 
charge of the deed, or causing a copy of the notice to be 
filed and recorded as aforesaid, forthwith collect the un- 
paid tax or assessment referred to in such deed by pro- 
ceedings in conformity to law. 

87. In addition to the power now given by law to enforce 
the lien for a tax or assessment laid on real estate, with all 
incidental costs and expenses by sale thereof, the collector 
shall have power to take for the city or town the whole of 
the real estate taxed or assessed, if the tax or assessment 
is not paid within fourteen days after a demand of pay- 
ment made as required by sections twenty-two, twenty-four, 
or twenty-five of chapter twelve of the General Statutes, 
and still remains unpaid at the date of such taking. The 
collector shall give three weeks' notice of his intention to 
exercise such power of taking ; which notice may be served 
either in the manner prescribed by law for the service of 
summonses for witnesses in civil cases, or by advertise- 
ment thereof in the manner required by section twenty- 
eight of chapter twelve of the General Statutes, and shall 
contain the particulars required by section twenty-nine of 
said chapter twelve. He may also post a similar notice in 
accordance with the provisions of section thirty of said* 
chapter twelve. 

The affidavit of the collector, or of a disinterested per- 
son, taken before a justice of the peace, of the service 
of the demand of payment, and of the notice herein pro- 
vided, made upon a copy thereof, and filed and recorded 
in the registry of deeds of the county or district where the 
land lies, shall be competent evidence of such demand or 
notice. But the demand of payment may be made, and 
the evidence thereof perpetuated, in the manner provided 



COLLECTION OF TAXES. 143 

by section twenty-seven of said chapter twelve. Said 
affidavits shall be annexed to the instrument of taking, 
which shall be under the hand and seal of the collector, 
and shall contain a statement of the cause of taking, a sub- 
stantially accurate description of each parcel of land taken, 
the name of the person to whom the same was assessed, 
and the amount of the tax thereon, and of incidental costs 
and expenses to the date of taking. Said instrument shall 
be filed and recorded in the registr} T of deeds of the county 
or district where the land lies ; and the title to the lands so 
taken shall thereupon vest in the city or town, subject to 
the right of redemption given by section thirty-six of chap- 
ter twelve of the General Statutes as amended by this act. 

88. Every city by ordinance, and every town by by-law, 
may determine and direct which power its collector shall 
exercise to enforce the lien for a tax or assessment laid on 
real estate, — that of sale under section twenty-two of 
chapter twelve of the General Statutes, or that of taking 
under section five of this act (preceding section) ; and in 
the absence of any such ordinance or by-law the collector 
may exercise either power at his discretion. 

89. Whenever the collector has reasonable cause to 
believe that a tax-title, held by a cit}- or town under a sale 
or taking for non-payment of a tax or assessment, is invalid 
by reason of any error, omission, or informality in any of 
the proceedings of assessment, sale, or taking, he may 
release, disclaim, and annul such title b}' an instrument 
under his hand and seal, duly filed and recorded in the 
registry of deeds of the county or district where the land 
lies. If the invalidity of such title arose b}^ reason of any 
error, omission, or informality in an} r of the proceedings of 
assessment, he shall forthwith noth"y the board by whom 
the tax or assessment was laid, who shall immediately 
reassess the same, as provided by section fifty-three of 
chapter eleven of the General Statutes. 

90. The treasurer or other disbursing officer of any city 
or town may, and if so requested by the collector of that 
place shall, withhold payment of any moneys that may be 



144 TOWN AND PARISH OFFICER. 

made payable from the treasury of that place to any person 
whose taxes, assessed in that place, are then due and 
wholly or partly unpaid : provided, that no greater sum 
shall be thus withheld than is necessary to pay the amount 
of tax then due as aforesaid, with interest and costs. The 
sum withheld shall be payable to the collector, who shall, 
if required, giye a written receipt therefor. The person 
taxed ma} 7 , in such case, have the same remedy as if he 
had paid such tax after a levy upon his goods. The col- 
lector's right as established by this section shall be valid 
against any trustee process not commenced, or any assign- 
ment not recorded, prior to the passage of this act. 

91. No person entitled under the provisions of section 
thirty- six of chapter twelve of the General Statutes to 
redeem real estate sold for non-payment of a tax or assess- 
ment, shall have a right to redeem land held by a city or 
town under a sale or taking for non-payment of a tax or 
assessment, unless he pays or tenders to the collector 
thereof all sums due the city or town in respect of said 
land by reason of all such sales or takings thereof, and of 
all subsequent taxes or assessments thereon due and un- 
paid, with all interest and incidental costs and expenses. 

92. If no person, lawfully entitled within the time pre- 
scribed by law, redeems the property purchased for and 
held by a city or town under the provisions of chapter one 
hundred and eighty-three of the acts of the year one thou- 
sand eight hundred and sixty- two, or taken for it under the 
provisions of this act, the city or town shall forthwith pro- 
ceed to sell the real estate at public auction, after having 
given the same notice as is required in section twenty-eight 
of chapter twelve of the General Statutes, executing and 
delivering to the highest bidder therefor a quit-claim deed ; 
and from the money arising from said sale shall be deducted 
the expenses of making the sale, together with the amount 
named in the collector's deed or instrument of taking, as 
the sum due when the same was executed, and all interest 
and charges thereon fixed by existing law, and also all 
subsequent taxes and assessments, with all interest and 



COLLECTION OF TAXES. 145 

charges due in respect thereof; the balance, if any, shall 
be deposited in the city or town treasury, subject to the 
provisions of section seven of chapter one hundred and 
eighty-three of the acts of the year one thousand eight 
hundred and sixty-two. 

93. Whenever there is recorded in a registry of deeds a 
conveyance affecting, by way of assignment, release, par- 
tial release, discharge, or disclaimer, a title created by any 
deed or instrument of taking, executed in consequence of a 
sale or taking for non-payment of a tax or assessment, the 
register of deeds shall make a note of reference to the 
record of such conveyance on the margin of the record of 
the deed or instrument of taking therein referred to. 

94. Whenever the collector exercises the power of taking 
given by section five of this act (section eighty-seven of 
this chapter) , there shall be allowed to him, and added to 
the amount of the tax, the same charges and fees as are 
fixed for similar proceedings by section ten of chapter one 
hundred and eighty-three of the acts of the year one thou- 
sand eight hundred and sixty-two as hereby amended ; and 
when service of the demand of payment, and notice of in- 
tention to take, is made in the manner prescribed by law 
for the service of summonses for witnesses in civil cases, 
there shall be allowed therefor, and added as above men- 
tioned, fifty cents, together with the fees for travel fixed by 
section one of chapter one hundred and one of the acts of 
the year one thousand eight hundred and sixty-five. 

95. The owner of any interest in real estate purchased 
and held by a city or town under the provisions of chapter 
one hundred and eighty-three of the acts of the year eigh- 
teen hundred and sixty-two, having a right to redeem the 
same, may pay to the treasurer of the town or city all sums 
required by law for the redemption of such estate ; in which 
case the treasurer shall give to the person so paying a like 
certificate as that mentioned in section thirty-eight, chapter 
twelve, of the General Statutes ; and the certificate may be 
recorded in the manner, and with like effect, as that de- 
scribed in said section. If the person so redeeming be the 

10 



146 TOWN AND PARISH OFFICER. 

holder of a mortgage, the sums so paid by him shall be 
added to, and constitute a part of, the principal sum of the 
mortgage ; and the mortgage shall not be redeemed until 
such sums, and interest thereon, are paid ; and, in such 
case, the recording of said certificate in the registry of 
deeds in the district or county where the land lies, within 
thirty days from its date, shall be notice to all persons of 
the payment of such sums, and the hen upon the estate 
therefor. 1 

96. The legal voters of any fire, water supply, improve- 
ment or school district, organized under the laws of this 
commonwealth, may, at the meeting when money is ap- 
propriated or raised, fix a time within which all taxes 
assessed therein shall be paid, and may vote that on all 
taxes remaining unpaid after a certain time interest shall 
be paid at a specified rate, not exceeding one per centum 
per month, and may also vote that on all taxes remaining 
unpaid after another certain time interest shall be paid at 
another specified rate, not exceeding one per centum per 
month ; and the interest accruing under such vote or votes 
shall be added to and be a part of such taxes. 

97. The clerk of the district shall certify such vote or 
votes to the assessors of the town in which said district is 
situated, together with all sums of money voted to be 
raised by the district, which shall be assessed and collected 
by the officers of the town in the same manner that the 
town taxes are assessed and collected, and be paid over to 
the treasurer, who shall hold the same subject to the order 
of the prudential committee or treasurer of the district. 2 

l Stats. 1878, ch. 266. 2 gtats. 1878, ch. 185. 



TOWN TREASURER. 147 



CHAPTER XVI. 
TOWN TREASURER. 

1. The town treasurer shall give bond in such sum as 
the selectmen require, with sureties to their satisfaction, for 
the faithful discharge of the duties of his office ; shall re- 
ceive and take charge of all sums of money belonging to 
his town, and pay over and account for the same according 
to the order of such town or the officers thereof duly 
authorized in that behalf. 1 

2. The bond required in the preceding section should be given to 
the town and not to the selectmen. 2 

3. A town treasurer is not excused from paying over money col- 
lected by him because it has been stolen from him without his fault. 
And his sureties on his bond will be liable for his failure to pay on 
that account. 3 

4. He may in his own name and official capacity prose- 
cute suits upon bonds, notes, or other securities, given to 
him or his predecessors in office, and where no other pro- 
vision is specially made, shall prosecute for all fines and 
forfeitures which enure to his town or the poor thereof. 

5. He shall prosecute for trespasses committed on any 
public building or enclosure belonging to his town ; and 
when a public building is owned partly by the town and 
partly by the county, such prosecution may be made either 
by the town or county treasurer, whichever shall first insti- 
tute the same. 

6. A town may at any meeting appoint its treasurer 
collector of taxes ; and he may appoint deputies, who 
shall give such bonds for the faithful discharge of their 
duty as the selectmen think proper. Such collector and 

1 Gen. Stats, ch. 18, § 54. 3 Hancock v. Hazard, 12 Cush. 

2 Stevens v. Hay, 6 Cush. 229. 112. 



148 TOWN AND PARISH OFFICER. 

deputies shall have the same powers as are vested in col- 
lectors of taxes. 1 

7. And such deputies may execute a warrant though it is directed 
to the collector only. 2 

8. A treasurer so appointed collector may issue his war- 
rant to the sheriff of the county, or his deputy, or to any 
constable of the town, directing them to distrain the prop- 
erty or take the body of any person who is delinquent in 
the payment of taxes, and to proceed in like manner as 
collectors are required to do in like cases. 

9. The treasurer shall annually render a true account 
of all his receipts and payments, and other official doings, 
to the town, and shall receive such compensation for his 
services as the town may determine. 8 

i Gen. Stats, ch. 18, §§ 5S-57. • Gen. Stats, ch. 18, §§ 58, 59. 

2 Aldrich v. Aldrich, 8 Met. 102. 



CONSTABLES, AND THEIR DUTIES. 149 



CHAPTER XVH. 

CONSTABLES, AND THEIR DUTIES. 

1. A person chosen to the office of constable, able to 
perform the duties thereof and not exempt, who refuses 
to take the oath and to serve in such office, shall forfeit 
twenty dollars. If he is present in town meeting and 
declares his refusal or neglects for seven days after being 
summoned to take the oath of office or to pay such fine, 
he shall be prosecuted therefor by the treasurer. 

2. Any constable who gives to the inhabitants of the 
town for which he is chosen a bond with sureties in a sum 
not less than (one thousand *) dollars to the satisfaction 
of the selectmen, with condition for the faithful perform- 
ance of- his duties in the service of all civil processes com- 
mitted to him, and causes the same, with the approval of 
the selectmen indorsed thereon, to be filed in the office 
of the town clerk, may, within his town, serve any writ or 
other process in a personal action in which the damages 
are not laid at a greater sum than (two *) hundred dol- 
lars, and any process in replevin in which the subject- 
matter does not exceed in value (two a ) hundred dollars, 
and any writ or other process under the provisions of 
chapter one hundred and thirty-seven ; and no constable 
shall serve any process in a civil action until he gives 
such bond. 

A constable may now serve such writs when the damages are not 
laid at a greater sum than three hundred dollars, and any process in 
replevin in which the subject-matter does not exceed three hundred 
dollars in value, provided he gives a bond with sureties, in a sum not 

l Stats. 1870, ch. 149. 



150 TOWN AND PARISH OFFICER. 

less than three thousand dollars with condition for the faithful per- 
formance of his duties as now provided by law. 1 

3. The town clerk shall note upon every bond given by 
a constable the time when the same was filed. Any person 
injured by a breach of the condition of such bond may at 
his own expense institute a suit thereon in the name of the 
town, and like proceedings shall be had as in a suit by a 
creditor on an administration bond. The writ shall be 
indorsed by the persons for whose benefit the suit is 
brought ; and, if neither of them is an inhabitant of this 
state, it shall also be indorsed by some other responsible 
indorser residing in this state. If judgment is for the 
defendants, execution shall issue for costs against the 
indorsers, as if they were plaintiffs of record. 2 

To attach the goods of A., on a writ against B., is a breach of the 
condition of his official bond given for the faithful performance of 
his duties in the service of civil processes. 3 

4. Constables may serve such writs and processes as are 
described in section sixty-one (section two above), and 
warrants and other processes in criminal cases, although 
their town, parish, religious society, or school district is 
a party or interested. 

5. They may serve by copy by them attested all de- 
mands, notices, and citations, and their returns of service 
thereof shall be prima facie evidence ; but this provision 
shall not exclude the service thereof by other parties. 

6. They may, like sheriffs, require aid in the execution 
of their duties. They shall not appear in court or before 
a justice of the peace as attorney or counsel for any party. 
The provisions of sections sixty-four and sixty-seven of 
chapter seventeen shall apply to constables. 

7. They shall serve all warrants and other processes, 
lawfully directed to them by the selectmen of their town, 
for notifying town meetings or for other purposes. 

8. They shall take due notice of and prosecute all vio- 

1 Stats. 1872, ch. 268. 3 Greenfield v. Wilson, 13 Gray, 

2 Gen. Stats, ch. 18, §§ 60-62. 386. 



CONSTABLES, AND THEIR DUTIES. 151 

lations of the laws respecting the observance of the Lord's 
day, to prevent profane swearing, and against gaming. 

Whoever is found in a state of intoxication in a public place, or is 
found in any place in a state of intoxication committing a breach of 
the peace or disturbing others by noise, may be apprehended by any 
sheriff, deputy sheriff, constable, watchman, or police officer, without 
a warrant, and kept in custody in some suitable place until he is so 
far recovered from his intoxication as to render it proper to carry 
him before a court of justice. The officer may then make a com- 
plaint against him for the crime of drunkenness. 1 

Whoever remains upon a street or sidewalk, or elsewhere, in any 
city or town in wilful violation of an ordinance or by-law, and who- 
ever, upon any street, sidewalk, or in any other public place, accosts 
or addresses any other person with profane or obscene language in 
wilful violation of an ordinance or by-law, may be arrested without a 
warrant by any officer authorized to serve criminal process in the 
place where the offence is committed, if unknown to the officer 
making such arrest, and may be kept in custody until he can be taken 
before a court having jurisdiction to punish such offence. 2 

9. A constable in the execution of a warrant or writ 
directed to him may convey beyond the limits of his town 
prisoners and property in his custody under such process, 
either to the justice who issued it, or to the common jail 
or house of correction of his county. 

10. If a person against whom a warrant is issued for an 
alleged offence committed within any town, before or after 
the issuing of the warrant, escapes from or is out of the 
town, any constable of such town to whom the warrant is 
directed may pursue and apprehend him in any place in 
the commonwealth. 

1 1 . When an unincorporated place is annexed to a town 
for the purpose of taxation, the constables of such town 
shall have and exercise in such unincorporated place the 
same powers as if it were a part of their town. 8 

12. It shall be the duty of the constables of the several towns and 
cities, city marshals, chiefs of police and all other police officers, to 
aid the governor or chief of the state detective force and state detec- 
tives in the discharge of their duties, whenever called upon for that 

i Stats. 1876, ch. 17. 3 Gen. Stats, ch. 18, §§ 63-70. 

^ Stats. 1878, ch. 181. 



152 TOWN AND PARISH OFFICER. 

purpose : provided, however, that said constables of the several towns 
and cities, city marshals, chiefs of police, and other police officers, 
shall not be ordered out of their respective cities and towns. And 
any constable, marshal, or police officer refusing to aid the governor, 
said chief or detectives, when called upon so to do, shall be punished 
by imprisonment in the jail not exceeding three months, or by fine 
not exceeding one hundred dollars. 1 

1 Stats. 1875, ch. 15. 



WATCH AND WARD. 153 



CHAPTER XVIII. 

WATCH AND WAED. 

1. A city or town may establish and keep a watch and 
determine the number and qualifications of the persons to 
be emplo} T ed for that purpose. The mayor and aldermen 
or selectmen shall appoint a suitable person to be officer 
of the watch, and direct the manner in which watchmen 
shall be equipped. The expense of the watch shall be de- 
frayed in like manner as other town charges. 

2. The watch shall see that all disturbances and dis- 
orders are prevented and suppressed. During the night- 
time they may examine all persons abroad whom they have 
reason to suspect of any unlawful design, demand of them 
their business abroad and whither they are going ; may 
disperse any assembly of three or more such persons, and 
enter any building for the purpose of suppressing a riot or 
breach of the peace therein. Persons so suspected and not 
giving a satisfactory account of themselves, persons so 
assembled and not dispersing when ordered, and persons 
making, aiding, or abetting in a riot or disturbance, may 
be arrested by the watch, and shall thereupon be safely 
kept, by imprisonment or otherwise, until the next morn- 
ing, and then taken before a police court or some trial jus- 
tice, to be examined and proceeded against. 

3. Officers and members of the watch, when on duty, may 
carry a club of not more than eighteen inches in length ; 
shall wear such badge of office as the mayor or selectmen 
direct, and shall walk the rounds in and about the streets, 
lanes, wharves, and principal inhabited parts of the city 
or town, to prevent danger by fire, and to see that good 
order is kept. 

4. The meijor and aldermen or selectmen of any place 



154 TOWN AND PARISH OFFICER. 

wherein no watch as above provided is established, may 
from time to time order a suitable watch to be kept in 
their place, and warn all persons liable to watch and ward 
duty to perform the same. They may direct the number of 
the watch, the places and hours for keeping the same, may 
order in writing any constable or officer of the watch to 
warn such watch, either by himself or by some person 
therefor by him appointed, and to see that all persons so 
warned attend and perform their duty. 

5. Every male person of the age of eighteen years or 
upwards, being able of body, or having sufficient estate 
to hire a substitute, and not exempt, shall be liable to 
watch and ward in his city or town, and shall perform the 
duties, be subject to the liabilities, and have the powers of 
watchmen as the same are defined in this chapter. 

6. Justices of the peace, mayors, aldermen, selectmen, 
sheriffs, settled ministers of the gospel, and persons living 
more than two miles from the place where such watch and 
ward is kept, shall be exempt. 

7. Persons liable to watch and ward, and without rea- 
sonable excuse neglecting or refusing to appear and do 
duty personally or by sufficient substitute, and constables 
or officers or members of the watch refusing to execute and 
observe proper orders, shall forfeit ten dollars, to be re- 
covered by complaint to the use of the commonwealth, or 
by action of tort to the use of the city or town. 

8. Watch districts may be established and organized in 
villages containing not less than one thousand persons, for 
the protection of property against fire, thieves, and robbers, 
and for keeping the streets quiet in the night-time. 

9. The selectmen of a town, upon the application in 
writing of not less than seven freeholders, inhabitants of 
such village the limits of which shall be defined in the ap- 
plication, requiring them to notify a meeting of the persons 
in such district qualified to vote in town affairs, for con- 
sidering the expediency of establishing such watch district, 
shall forthwith give notice to such voters, in the manner 
in which notice of town meetings is given, to assemble at 



WATCH AND WARD. 155 

some suitable place within the district for said purpose, the 
substance of which shall be expressed in the notification. 
If the selectmen refuse or neglect to give notice of such 
meeting, any justice of the peace in the county may so 
notify the same. 

10. When such village belongs to two or more towns, 
the voters thereof may organize such district at a meeting 
called and notified as provided in the preceding section by 
an} r justice of the peace for the county in which either 
town is situated, to whom application has been made by at 
least five voters of each town who are inhabitants of such 
district. 

11. If at any such meeting the voters present determine 
to establish such district, a clerk shall be chosen, who shall 
be sworn to keep a true record of the proceedings of all 
meetings and to perform all duties of clerk of the district 
so long as he holds the office. He may be removed by the 
district, or may resign, and in case of a vacancy another 
may be chosen. 

12. A prudential committee of not less than three nor 
more than five persons shall be chosen by ballot, and shall 
be sworn. 

13. The prudential committee shall annually issue their 
warrants to the clerk, requiring him to call a meeting 
in the month of March for the purpose of choosing officers. 
Such officers shall perform the duties of their offices until 
others are chosen. 

14. Meetings of the district shall be called by the clerk 
when requested in writing by the prudential committee or 
seven voters of the district. He shall give notice thereof 
by posting written notifications in at least six public places 
in the district, not less than seven days prior to the meet- 
ing, which notifications shall contain a brief statement of 
the purposes of the meeting. At each of the meetings 
a moderator shall be chosen, who shall have the powers of 
the moderator of a town meeting. After the choice of a 
clerk, he shall preside at subsequent meetings with like 
powers until a moderator is chosen. 



156 TOWN AND PARISH OFFICER. 

15. The district may, at meetings called for the purpose, 
vote to raise money for the payment of watchmen and 
other necessary expenses. The prudential committee 
shall have the superintendence and control of the watch- 
men, have charge of and be responsible for the property 
employed, have the custody and management of the money 
raised, expend the same for the purposes specified in the 
votes of the district, be accountable to the district for the 
money received by them, and be liable to a suit for such 
money or other property of the district, in the name of 
the inhabitants thereof. 

16. The clerk shall certify to the assessors of the town, 
all sums of money voted to be raised, which shall be as- 
sessed and collected by the officers of the town in the same 
manner that the town taxes are assessed and collected, 
and be paid over to the treasurer, who shall hold the same 
subject to the order of the prudential committee. The 
assessors, treasurer, and collector of any town in which 
such district is organized shall have the powers and per- 
form the duties in reference to the assessment and collec- 
tion of said taxes which they have and perform in the 
assessment, collection, and abatement of town taxes ; but 
the sum so voted shall be assessed upon the property real 
and personal located within such district. 

17. When a district is composed of parts of two or 
more towns, the assessors of such towns shall transmit to 
the clerk of the district the amount of taxable property in 
such part of their respective towns as is within the limits 
of the district ; the prudential committee shall thereupon 
apportion the money voted to be raised by the district 
among the respective towns according to the returns thus 
transmitted, and the same shall be collected and held in 
the manner provided in the preceding section. 

18. When the freeholders of a territory adjoining a 
watch district present to the clerk thereof a petition de- 
scribing their territory and requesting to be annexed to 
such district, the clerk shall give notice of the petition at 
the next annual meeting of the district, when, by a vote 



WATCH AND WARD. 157 

of the meeting, the inhabitants of such territory may be 
annexed to the district. 

19. Watch districts heretofore legally organized shall 
continue, and be subject to the provisions of this chapter 
in relation to watch districts. 1 

20. Police officers and officers and members of the 
watch in any city or town, when on duty, may carry such 
weapons as the mayor and aldermen of such city or the 
selectmen of such town shall authorize. 2 

i Gen. Stats, ch. 23, §§ 1-19. 2 stats. 1864, ch. 110, § 1. 



158 TOWN AND PARISH OFFICER. 



CHAPTER XIX. 

DUTIES OF OVERSEERS OF THE POOR, AND THE SUP- 
PORT OF PAUPERS. 

1. Evert city and town shall relieve and support all 
poor and indigent persons lawfully settled therein, when- 
ever they stand in need thereof. 1 

But they may be supported in another place. 2 

2. In Smith v. Inhabitants of Colerain, 3 Shaw, C. J., in an elabo- 
rate opinion, said: "It has been too often decided to be now ques- 
tioned that the liability of towns to support poor persons is founded 
upon and limited by statute, and is not to be enlarged or modified by 
any supposed moral obligation. By this we understand not that 
there is no moral obligation on all men in society to contribute to the 
support of the poor ; but that towns are corporations, for limited and 
well-defined purposes, and that the duty of supporting the poor is not 
more binding upon them than upon parishes, counties, the state, or 
other organized bodies, further than such duty is created by law." 
" The first great object of the law, founded on the principle of sim- 
ple humanity, is, that the party standing in need shall have relief 
immediately, and at the place where it is required ; that is, from the 
overseers of the town where he is residing, or is found, without re- 
gard to their ultimate liability. The person in distress shall not be 
compelled to wait till notice can be given to a distant town, and 
whilst, perhaps, a controversy is subsisting as to its liability. And 
to insure such relief, if the overseers neglect or refuse, on notice, to 
afford it, any person, not himself liable for such relief, may afford it 
at the expense of the town." 

3. If any person, actually become chargeable as a pau- 
per to any city or town in which he has a settlement, has 
a settlement subsequently acquired in any place without 
this commonwealth, the overseers of the poor of such city 
or town may cause him to be removed to said place of 
subsequent settlement, by a written order directed to any 
person therein designated, who may execute the same. 4 

1 Gen. Stats, ch. 70, § 1. 8 9 Met. 492. 

2 Smith v. Peabody, 106 Mass. 262. 4 Stats. 1868, ch. 328, § 2. 



DUTIES OF OVERSEERS OF THE POOR, ETC. 159 

4. It shall be unlawful for the overseers of the poor of 
any city or town to remove beyond the limits of this com- 
monwealth any minor under their control, or cause or 
allow the same to be done, or to withhold information con- 
cerning the maintenance of such minor, from any person 
entitled to receive the same : provided, that the judges of 
probate may, upon application of the overseers of the 
poor of any town in their respective counties, upon a hear- 
ing thereon, after due notice to all parties interested, au- 
thorize such removal to be made ; and provided, further, 
that this act (this section) shall not apply to minors who 
have a settlement in other states. 

5. Any overseers of the poor violating the provisions 
of the preceding section shall be punished by a fine not 
exceeding five hundred dollars. 1 

6. And one who, being in need of immediate relief and support, 
has received the same from the town of his lawful settlement, is not, 
in the absence of fraud, liable to an action by the town therefor, 
although he was possessed of property at the time. 2 

7. Any insane person who is supported by any place as 
a pauper may be committed by the overseers of the poor 
thereof to either of the state lunatic hospitals, with the 
consent of the trustees, and shall be kept for a sum not 
exceeding the actual expense of his support. And the 
trustees shall receive into the hospital any other insane 
person having a settlement or residence in this common- 
wealth for such compensation as they may determine. 

8. The expenses of the state lunatic hospitals for the 
support of lunatics having known settlements in this state 
shall be paid quarterly, either by the persons obligated to 
pay or by the place in which such lunatics had their resi- 
dence at the time of their commitment, unless other suffi- 
cient security is taken to the satisfaction of the trustees 
for such support. If an}' place or person refuses to pay 
whatever sum may be charged and due according to 
the by-laws of the hospital, on account of the support of 
such patient therein, or for the removal of any patient 

i Stats. 1868, ch. 279, §§ 1, 2. 2 stow v. Sawyer, 3 Allen, 515. 



160 TOWN AND PARISH OFFICER. 

whom the trustees are authorized by law to remove, for 
thirty days after the same has been demanded by the treas- 
urer, in writing, of the mayor and aldermen of the city, 
or of the selectmen of the town, or of the person liable 
therefor, the same, with interest from the time of such 
demand, may be recovered for the use of the hospital in 
an action to be instituted by the district attorneys, or other 
prosecuting officers, in the name of the treasurer, against 
such delinquent city, town, or person. 1 It shall be the 
duty of the overseers of the poor of any city or town, 
except the city of Boston, to commit to one of the state 
lunatic hospitals or the Boston Lunatic Hospital, with 
the consent of the trustees thereof, any person supported 
by such city or town who is suffering under recent in- 
sanity, and is a fit subject for remedial treatment. 2 

9. The overseers of the poor shall have the care and 
oversight of all such poor and indigent persons, so long 
as they remain at the charge of their respective cities or 
towns, and shall see that they are suitably relieved, sup- 
ported, and employed, either in the workhouse or alms- 
house, or in such other manner as the city or town directs, 
or otherwise at the discretion of said overseers. They 
may remove to the almshouse such children as are suffer- 
ing destitution from extreme neglect of dissolute or intem- 
perate parents or guardians. 3 

10. If the municipal authorities of a town have provided supplies 
for distribution among those out of the almshouse who need relief, 
upon orders of the overseers of the poor, and have given notice 
thereof to the overseers, the latter have no authority to contract 
debts in behalf of the town for the support of the poor ; and one 
who, having knowledge of the facts, furnishes supplies to persons 
settled in such town, upon order of the overseers, cannot maintain 
an action against the town to recover the same. But, if he furnishes 
supplies upon such orders to persons settled elsewhere, he may re- 
cover from the town the amount actually received by it on account 
of such supplies, from the towns which were liable to support the 
persons who were relieved thereby. 4 

1 Stats. 1862, ch 283, §§ 9, 10. 4 Ireland, Jr. v. Newburyport, 8 

2 Stats. 1864, ch. 288, § 6. Allen, 73. 

3 Gen. Stats, ch. 70, § 2. 



DUTIES OF OVERSEERS OF THE POOR, ETC. 161 

11. The overseers of the poor shall have the same 
power and authority over persons placed under their care 
which directors or masters of workhouses have over per- 
sons committed thereto. 

12. The kindred of such poor persons, in the line or 
degree of father or grandfather, mother or grandmother, 
children or grandchildren, by consanguinit}', living in this 
state, and of sufficient ability, shall be bound to support 
such paupers in proportion to their respective ability. 1 

13. The words "poor and indigent persons in need of relief," 
" persons in distress and in need of immediate relief," " poor person," 
and "pauper," are used synonymously, except in those instances in 
which the person termed " pauper " is also described as having been 
relieved and supported by a town ; and in those instances a technicaL 
pauper would have been designated if the words " poor person " had 
been used, instead of the word " pauper." The technical meaning is 
not evinced by the use of any special word, but by referring to the 
person, or by describing him as one who has received support from a 
town ; which fact constitutes him a technical pauper. 2 

A town that is obliged by section fifty-eight of chapter one hun- 
dred and seventy-eight of the General Statutes to pay not exceeding 
one dollar per week for the support of a prisoner may recover the 
same of any parent, master, or kindred, by law liable to maintain 
him. 3 

14. The superior court in the county where any one of 
such kindred to be charged resides, upon complaint of any 
city, town, or kindred who shall have been at expense for 
the relief and support of such pauper, may, on due hear- 
ing, assess and apportion upon such of the kindred as they 
shall find to be of sufficient ability, and in proportion 
thereto, such sum as they shall deem reasonable for or 
towards the support of the pauper to the time of such as- 
sessment ; and may enforce payment thereof by execution 
in common form : provided, that such assessment shall not 
extend to any expense for relief afforded more than six 
months previous to the filing of the complaint. 4 

i Gen. Stats, ch. 70, §§ 3, 4. 3 stats. 1876, ch. 148. 

2 Hutchings v. Thompson, 10 Cush. 4 Gen. Stats, ch. 70, § 5. 
238. 

11 



162 TOWN AND PAEISH OFFICER. 

15. The " kindred," who are entitled under the foregoing section to 
recover their apportionment for support furnished a pauper, are those 
only who are such by consanguinity. 1 

16. The words " such pauper," when applied to a person whom a 
town has relieved, means a technical pauper ; not because the term 
" pauper " is used, but because, by being relieved by a town, he be- 
comes a technical pauper. The same words, however, when applied 
to one whom his kindred have relieved, do not necessarily so mean. 
As has been already said, they mean one of that class of persons who 
are designated in sections one and thirteen of this chapter as poor 
and indigent, and standing in need of relief; including those who 
have not received relief from a town as well as those who have. 2 ^ 

17. Municipal corporations are only authorized to furnish relief 
to those who, when the relief is furnished, may properly be denom- 
inated paupers, either from general poverty or present temporary 
necessity requiring such aid ; and when the town has, in such cases, 
furnished necessary supplies, through the action of the overseers of 
the poor, an action will lie at common law against the husband, to 
recover the amount thus expended for his wife and minor children. 3 

18. The court may further assess and apportion upon 
said kindred such weekly sum as they shall deem sufficient 
for the future support of the pauper, to be paid quarter- 
yearly until the further order of court ; and upon appli- 
cation from time to time of the city, town, or kindred, to 
whom the same is ordered to be paid, the clerk of said 
court shall issue and may renew an execution for the ar- 
rears of any preceding quarter. 

19. When the court adjudges two or more of the kin- 
dred of a pauper to be of sufficient ability to contribute to 
his support, they shall tax no more costs against any one 
respondent than is occasioned by his default or separate 
defence. 

20. The court may further order with whom of such 
kindred, that may desire it, such pauper shall live and be 
relieved, and such time with one, and such time with an- 
other, as they shall deem proper, having regard to the 
comfort of the pauper as well as the convenience of the 
kindred. 

1 Farr v. Flood, 11 Cush. 24. 8 New Bedford v. Chace, 5 Gray, 

2 Hutchings v. Thompson, 10 Cush. 28. 
238. 



DUTIES OF OVERSEERS OF THE POOR, ETC. 163 

21. The complaint made as provided in this chapter 
shall be filed in the clerk's office, and a summons shall 
be thereupon issued requiring the kindred therein named 
to appear and answer thereto ; which summons shall be 
directed to any officer qualified to serve civil process 
between the parties, and served like an original summons, 
fourteen days at least before the sitting of the court to 
which it is returnable. 

22. Upon suggestion that there are other kindred of 
ability, not summoned in the original process, they may 
be summoned, and after due notice, whether they appear 
or are defaulted, the court may proceed against them in 
the same manner as if they had been summoned upon the 
original complaint. 

23. The court may take further order from time to time 
in the premises, upon application of any party interested, 
and may alter such assessment and apportionment accord- 
ing to circumstances ; and upon all such complaints they 
may award costs to either party as justice requires. 1 

24. Under the preceding section the superior court have power 
to award costs upon a complaint to compel kindred of a poor person 
to contribute towards his support. And no appeal lies from their 
decision. 2 

25. Said overseers, in their respective places, shall pro- 
vide for the immediate comfort and relief of all persons 
residing or found therein, having lawful settlements in 
other places, when they fall into distress and stand in 
need of immediate relief, and until they are removed to 
the places of their lawful settlements ; the expenses 
whereof, incurred within three months next before notice 
given to the place to be charged, as also of their removal, 
or burial in case of their decease, may be recovered by 
the place incurring the same against the place liable there- 
for, in an action at law, to be instituted within two years 
after the cause of action arises, but not otherwise. 3 

i Gen. Stats, ch. 70, §§ 6-11. 8 Gen. Stats, ch. 70, § 12. 

2 South Reading v. Hutchinson et 
al, 10 Allen, 68. 



164 TOWN AND PARISH OFFICER. 

26. A town which has furnished relief to a person found therein 
and standing in need of immediate relief may recover the expenses 
thereof from the town of his settlement, although sufficient provision 
may have been made for his general support by his father's will. 1 

27. Notice by one town to another of a claim made by the treas- 
urer of a state lunatic hospital for the past and future support of a 
pauper is sufficient to support an action for the past expenses (though 
not actually paid until more than three months after), but not for 
expenses of the support of the pauper after such notice. 2 

28. A recovery in such action shall bar the place against 
which it shall be had from disputing the settlement of such 
pauper with the place so recovering, in any future action 
brought for his support. 

But the action must be prosecuted to final judgment. 3 

29. When a person is supported in a place other than 
that in which he has his settlement, the place liable for his 
support shall not be required to pay therefor more than at 
the rate of two 4 dollars a week : provided, that the place so 
liable shall cause the pauper to be removed within thirty 
days from the time of receiving legal notice that such sup- 
port has been furnished. 5 

30. The preceding section does not apply to the case of the re- 
moval of a pauper after his decease, though before burial. 6 

31. In computing the thirty days, the day on which notice is re- 
ceived that the support has been furnished is to be excluded.? 

32. The overseers of the poor of each place shall also 
relieve, support, and employ all poor persons residing or 
found therein, having no lawful settlements within this 
state, until their removal to a state almshouse, and in case 
of their decease shall decently bury them ; the expense 
whereof may be recovered of their kindred, if they have 
any chargeable b}^ law for their support, in the manner 
hereinbefore provided ; and if, in case of their burial, the 

i Groveland v. Medford, 1 Allen, 6 Gen. Stats, ch. 70, §§ 13, 14. 
23. 6 Webster v. Uxbridge, 13 Met. 

2 Amherst v. Shelburne, 11 Gray, 198. 

107. 7 Seekonk v. Rehoboth, 8 Cush. 

3 Wenhara v. Essex, 103 Mass. 119. 371. 

4 Stats. 1873, ch. 213. 



DUTIES OF OVERSEERS OF THE POOR, ETC. 165 

expense thereof is not paid by such kindred, there shall 
be paid from the treasury of the commonwealth (ten dol- 
lars *) for the funeral expenses of each pauper over twelve 
years of age, and (five dollars *) for the funeral expenses 
of each pauper under that age. 2 

The provisions of this section are extended to unknown persons 
found dead, and to all persons without settlement, having died with- 
out means of support, notwithstanding such persons may not have 
applied for public relief during their lifetime. This however does not 
affect the following statute. 3 

When a medical examiner views or makes an examination of the 
dead body of a stranger, he shall cause the body to be decently buried ; 
and if he certifies that he has made careful inquiry, and that to the 
best of his knowledge and belief the person found dead is a stranger, 
having no settlement in any city or town of this commonwealth, his 
fees, with the actual expense of burial, shall be paid from the treasury 
of the commonwealth. In all other cases the expense of the burial 
shall be paid by the city or town, and all other expenses by the 
county, wherein the body is found. 4 

33. Every city and town shall be held to pay any ex- 
pense necessarily incurred for the relief of a pauper therein 
by an} r person who is not liable by law for his support, 
after notice and request made to the overseers thereof, and 
until provision is made b} r them. 5 

Notice and request made to one member of the board of overseers 
of the poor, intended for them all collectively and for him to com- 
municate to them, is a sufficient notice and request. 6 

34. The words " necessarily incurred " have been held to mean 
that " the claim must be proved to have been founded on the absolute 
necessity of a pauper ; that is, it must be for such needful relief or 
support as the pauper could not otherwise procure or obtain." 7 

35. A town will not be liable unless the pauper was in need of 
immediate relief at the time when it was afforded. 8 But an indi- 
vidual cannot recover of the town where a pauper has his settlement, 
for necessary relief furnished to the pauper in another town, although 

i Stats. 1867, ch. 97. 6 Rogers v. Newbury, 105 Mass. 

2 Gen. Stats, ch. 70, § 15. 533. 

3 Stats. 1878, ch. 256. 7 Chief Justice Bigelow, in Lam- 

4 Stats. 1877, ch. 200, § 17. son v. Newbury port, 14 Allen, 30. 

5 Gen. Stats, ch. 70, § 16 ; Wing 8 Shearer v. Shelburne, 10 Cush. 3. 
v. Chesterfield, 116 Mass. 353. 



166 TOWN AND PARISH OFFICER. 

the former town has made provision, which proves inadequate, for 
the pauper's support in the latter town. 1 

36. " The town is rendered liable for the support of a poor person 
only after notice and request ; not only notice but request importing 
a distinct call on the town. This provision for notice to the town is 
of great importance, deeply affecting the interests of towns, and is 
one to which every person claiming upon the town should be required 
to give full and complete effect. The terms used in the statute notice 
and request clearly import that a party, to hold a town responsible for 
support furnished to any person, should be required to give express 
and formal and particular notice to, and make a distinct request of, 
the town. 

" It would alarmingly enhance the burdens and responsibilities of 
towns, if they were to be held liable to any person who might furnish 
aid to any one in need, without any other notice than some accidental 
information, or floating report, which might happen to reach the over- 
seers, and without any request. 

" The statute surely does not require the overseers to make in- 
quiry, or to go in pursuit of any reports which may casually reach 
them. But, on the contrary, it requires that the town shall have 
notice and request ; which clearly must mean formal and express 
notice and request." 2 

37. The overseers of any place may send a written 
notification, stating the facts relating to any person ac- 
tually become chargeable thereto, to one or more of the 
overseers of the place where his settlement is supposed to 
be, and requesting them to remove him, which they may 
do by a written order directed to any person therein desig- 
nated, who may execute the same. 3 

38. If such removal is not effected by the last-mentioned 
overseers within two months after receiving the notice, 
they shall within said two months send to one or more of 
the overseers requesting such removal a written answer, 
signed by one or more of them, stating therein their objec- 
tions to the removal ; and if they fail so to do, the over- 
seers who requested the removal may cause the pauper to 
be removed to the place of his supposed settlement, by a 
written order directed to any person therein designated, 

1 Hawes v. Hanson, 9 Allen, 199; Williams v. Braintree, 6 Cush. 
134; Smith v. Coleraine, 9 Met. 399. 

492. 3 Gen. Stats, ch. 70, § 17. See 

2 Walker v. Southbridge, 4 Cush. form of notice in Appendix. 



DUTIES OF OVERSEERS OF THE POOR, ETC. 167 

who may execute the same ; and the overseers of the place 
to which the pauper is so sent shall receive and provide for 
him ; and such place shall be liable for the expenses of his 
support and removal, to be recovered in an action by the 
place incurring the same, and shall be barred from con- 
testing the question of settlement with the plaintiffs in 
such action. 1 

But all other questions, such as need of relief, are open to the 
defendant. 2 

39. If a notification is sent, by the overseers of the poor of a town 
which has incurred expense for the relief of a pauper found therein, 
to the overseers of the poor of the town where his settlement is sup- 
posed to be, requesting his removal, the answer must be signed by 
some one of the overseers ; and if it is not so signed, their town will 
be barred from contesting the question of his settlement, although the 
pauper is not actually removed there ; and the answer will not be 
sufficient if signed merely by another person with whom the town has 
contracted for the support of its paupers for that year. Overseers to 
whom such an answer is sent do not waive the defect by sending a 
reply to the overseers of the other town, under the belief that the 
answer came from one of them, or by subsequently sending a new 
notification to them, for the removal of the same pauper. 3 

40. The notification and answer mentioned in the two 
preceding sections may be sent by mail ; and such noti- 
fication or answer, directed to the overseers of the poor of 
the place intended to be notified or answered, postage pre- 
paid, shall be deemed a sufficient notice or answer, and 
shall be considered as delivered to the overseers to whom 
it is directed, at the time when it is received in the post- 
office of the place to which it is directed and in which the 
overseers reside. 

41. Whoever brings into and leaves any poor and indi- 
gent person in any place in this state, wherein such pauper 
is not lawfully settled, knowing him to be poor and in- 
digent, and with intent to charge such place with his relief 
or support, shall forfeit a sum not exceeding one hundred 



1 Gen. Stats, ch. 70, § 18. 3 Petersham v. Coleraine, 9 Allen, 

2 New Bedford v. Hingham, 117 91. 
Mass. 445. 



168 TOWN AND PARISH OFFICER. 

dollars for each offence, to be recovered in an action of 
tort to the use of such place. 

This applies to public officers bringing paupers into a town. 1 

42. Upon the death of a pauper who at the time of his 
decease is actually chargeable to any place within this 
state, the overseers of the poor of such place may take 
possession of all his real and personal property ; and if 
administration is not taken upon his estate within thirty 
days after his decease, the overseers may in their own 
names sell and convey so much thereof as may be neces- 
sary to repay the expenses incurred for the pauper. If 
any part of such property is withheld from said overseers, 
they may in their own names sue for and recover posses- 
sion of the real estate, and shall have the same remedy 
for the recovery of the personal estate or its value that 
an administrator might have in like case. 

43. In all actions and prosecutions founded on the pre- 
ceding provisions of this chapter, the overseers of the poor 
of any place or any person by writing under their hands 
appointed shall appear, prosecute, or defend, the same to 
final judgment and execution, in behalf of such place. 2 

44. It shall be the duty of overseers of the poor in 
all the cities and towns of this commonwealth to keep full 
and accurate records of the paupers fully supported, the 
persons relieved and partially supported, the travellers 
and vagrants lodged at the expense of said cities and 
towms, together with the amount paid for such support 
and relief. 3 

45. An annual return of the numbers of persons supported and 
relieved, as enumerated in the previous section, with the cost of such 
support and relief, and a record of those fully supported, shall be 
made by the overseers of the poor to the secretary of the board of 
state charities during the month of April in each year, and shall be 
for the year ending on the thirty-first day of March preceding. In 
the year eighteen hundred and eighty-five, and in every tenth year 
thereafter, the returns provided for in section twenty-three, chap- 

1 Palmer v. Wakefield, 102 Mass. 2 Gen. Stats, eh. 70, §§ 19-22. 
214. 3 Stats. 1867, eh 209, § 1. 



DUTIES OF OVERSEERS OF THE POOR, ETC. 169 

ter seventy of the General Statutes, shall be made and transmitted 
by overseers of the poor to the secretary of the board of state chari- 
ties during the month of April, and shall be for the year ending on 
the thirty-first day of March preceding. 1 

46. If the overseers of any town or city shall refuse or 
neglect to comply with the requirements of this act (the 
two preceding sections and following section) , said town 
or city shall forfeit the sum of one dollar for each day's 
neglect, and the amount of such forfeiture shall be de- 
ducted from any sum to which said town or city may be 
entitled in reimbursement for relief of state paupers as 
provided in chapters one hundred and sixt} T -two of the 
acts of the year eighteen hundred and sixty-five, 2 and two 
hundred and thirty-four of the acts of the year eighteen 
hundred and sixty-six ; and in case no such reimbursement 
shall be clue to said town or city, the forfeiture shall be 
deducted from any money which may be due such town or 
city from the state. 

47. It shall be the duty of the secretary of the board 
of state charities to prepare tables from the returns thus 
made, and to report the most important information thus 
obtained to the board, who shall cause the same to be 
printed in their annual reports for the use of the legis- 
lature. 3 

48. The several cities and towns may at their own ex- 
pense send to said state almshouses, to be maintained at 
the public charge, all paupers who may fall into distress 
therein, not having a settlement within the commonwealth ; 
that is to say, the cities and towns in the counties of Suf- 
folk, Middlesex, and Essex, may send such persons to the 
state almshouse at Tewksbury ; the cities and towns in 
the counties of Norfolk, Bristol, Plymouth, Barnstable, 
Nantucket, and Dukes County, to the state almshouse at 
Bridgewater ; and the remaining cities and towns, to the 
state almshouse at Monson : provided, that the alien com- 
missioners may direct the mayor of any city or the over- 

i Stats. 1875, ck. 216. 3 Stats. 1867, ch. 209, §§ 3, 4. 

2 §§ 54-56 of this chapter. 



170 TOWN AND PARISH OFFICER. 

seers of the poor of any town to send such paupers to 
either of the state almshouses ; and if any place is so 
directed to send a pauper to a greater distance than would 
be required by the preceding provisions of this section, 
the necessary additional expense shall be paid by the 
state. 

49. No city or town shall send to either almshouse any 
person who by reason of insanity would be dangerous if at 
large. And if an inmate of such establishment becomes so 
insane, the inspectors thereof may apply to the judge of a 
police court, or any two justices of the peace and of the 
quorum, in the county in which the institution is situated, 
who shall have the same power and authority in regard to 
such application and the commitment of such person to 
either of the state lunatic hospitals, as judges of probate 
courts have in regard to lunatics furiously mad : provided, 
that it shall not be necessary to give notice of such appli- 
cation to the officers of any place. 1 

50. No city or town authorities shall be allowed to send 
to either of the state almshouses any person infected with 
small-pox or other disease dangerous to the public health, 
nor any other sick person whose health would be endan- 
gered b}^ removal ; but all such persons liable to be main- 
tained by the commonwealth shall be supported during such 
sickness by the city or town in which they are taken sick, 
and notice of such sickness shall be given to the board of 
state charities, who shall have authorhy to examine the 
case, and order the removal of the patient if they deem 
expedient. 

51. The expense incurred by any city or town under the 
provisions of the first section of this act (the preceding 
section) after notice shall have been given as therein 
required, and the bills for said support having been 
approved by the agent of the board of state charities, 
shall be reimbursed by the commonwealth to an amount 
not exceeding at the rate of the average weekly cost of 

1 Gen. Stats, ch. 71, §§ 36, 37. 



DUTIES OF OVERSEERS OF THE POOR, ETC. 171 

the support of similar patients at the Rainsford Island 
Hospital. 

52. Any mayor or overseer of the poor who shall know- 
ingly offend against the provisions of the first section of 
this act (section fifty-five above) shall be subject to a 
penalty of not less than fifty nor more than one hundred 
dollars. 1 

53. Guardians and agents of the several tribes of Indians 
in this commonwealth are authorized to send such Indians 
to the state almshouses, as they may deem the interest of 
the state and the welfare of said Indians require ; first 
obtaining a permit from one of the alien commissioners. 2 

54. Upon complaint (of any one 3 ) of the overseers of 
the poor of any city or town, trial justices and justices 
of the police and municipal courts may, in their discre- 
tion, commit persons, convicted before them of any of the 
offences enumerated in sections twenty-eight and thirty- 
five of chapter one hundred and sixty-five of the General 
Statutes, to the state workhouse at Bridge water, for a term 
not less than three months, nor more than two years, there 
to be governed and subject to the same liabilities as persons 
sentenced under the provisions of chapter one hundred and 
ninety-eight of the acts of the year eighteen hundred and 
sixty-six ; or such offenders may be sentenced as now pro- 
vided by law. 

55. If am' person so committed shall have a legal settle- 
ment in any city or town in this commonwealth, the said 
city or town shall pay for his support such sum per week 
as may be fixed upon by the said board, reference being 
had to his capacity for labor ; and all moneys so received 
shall be paid into the treasury in the manner now pro- 
vided by law : provided, however, that upon the written 
request of said overseers the board of state charities shall 
permit him to be transferred to the workhouse of his place 
of settlement, where he shall serve out the remainder of his 
sentence. 4 

i Stats. 1865, ch. 162, §§ 1-3. 3 stats. 1870, ch. 20. 

2 Stats. 1863, ch. 159. 4 stats. 1869, ch. 258, §§ 1, 3. 



172 TOWN AND PARISH OFFICER. 

56. The overseers of the poor in any place where there 
is no superintendent of alien passengers, or where such 
superintendent is unable to perform his duties by reason 
of absence or ill health, shall perform the duties and exer- 
cise the authority of superintendents ; and shall in like 
manner render their accounts to the state treasurer, and 
pay over the money received, deducting therefrom a rea- 
sonable compensation for their services. 1 

When a person by excessive drinking, gaming, idleness, or debauch- 
ery of any kind, so spends, wastes, or lessens his estate, as to expose 
himself or his family to want or suffering, or any place to charge or 
expense for the support of himself or his family, the selectmen of the 
town of which such spendthrift is an inhabitant or resident, or upon 
which he is or may become chargeable, may present a complaint to 
the probate court, setting forth the facts and circumstances of the case, 
and praying to have a guardian appointed. The court shall cause 
notice of not less than fourteen days to be given to the supposed 
spendthrift, of the time and place appointed for the hearing; and if 
after a full hearing it appears that he comes within the above descrip- 
tion, the court shall appoint a guardian of his person and estate. 2 

57. When a woman who has been delivered of a bastard child, or is 
pregnant with a child which if born alive may be a bastard, refuses 
or neglects to make a complaint and institute a prosecution against 
the person whom she accuses of being the father of the child when 
requested so to do by an overseer of the poor of the place where she 
resides or has her settlement, such overseer may make the complaint ; 
and when already made, if she refuses or neglects to prosecute the 
same, such overseer may prosecute the case to final judgment for the 
benefit of the town. In such case no complaint shall be withdrawn, 
dismissed, or settled by agreement of the mother and the putative 
father without the consent of the overseers of the poor of the town in 
which she has her settlement or residence, unless provision is made to 
the satisfaction of the court to relieve and indemnify such town from 
all charges that have accrued or may accrue for the maintenance of 
the child, and for the costs of complaint and prosecution thereof. But 
the overseers of the poor may compromise a prosecution on receipt of 
a fixed sum or security for the payment thereof, for the benefit of the 
town. 3 Any person arrested upon a warrant issued upon a complaint 
may be released upon giving a bond, with sufficient sureties, in not 
less than three hundred dollars, for his appearance before the court or 
justice having cognizance of said complaint, at a time to be specified 
in said bond. 

1 Gen. Stats, ch. 71, § 24. s Gen. Stats, ch. 72; Stats. 1862, 

2 Gen. Stats, ch. 109, § 9. ch. 213. 



DUTIES OF OVERSEERS OF THE POOR, ETC. 173 

The bond shall be made to the party for whose benefit the com- 
plaint is made or prosecuted, and the sureties may be examined, and 
the bond approved, by a bail commissioner or master in chancery l or 
a justice of a district or police court. 2 

58. No settlement made by the mother and father, before or after 
complaint is made, shall relieve the father from liability to any city 
or town, or the state, for the support of a bastard child. 

If found guilty on trial, the father shall give bond with sufficient 
sureties to indemnify and save harmless against all charges of main- 
tenance any town chargeable therewith ; and a town may recover 
by action of contract any sums of money which ought to have been 
paid to it, if they should not be paid in compliance with any order 
of the court. The foregoing provisions in relation to bastards do not 
apply where the child was begotten and born in another state, and 
neither mother nor child ever had a residence in this state. No stat- 
ute of limitations applies to prosecutions under these provisions, nor 
are prosecutions confined to cases where the child is living. 3 

59. The overseers of the poor of each city and town of 
this commonwealth shall make semi-annual returns to the 
visiting agent of the board of state charities, concerning 
all minor children above the age of four years wiio are 
supported at the expense of such city or town, in an alms- 
house or elsewhere, on the first day of January and July. 
Said returns shall be made in such form, and shall contain 
such information respecting said minor children as may be 
prescribed by the board of £jtate charities, and shall be for- 
warded to said agent on or before the tenth day of each 
month before mentioned. 

60. The provisions of sections two, three, and four of 
chapter three hundred and fifty-nine of the acts of the } T ear 
eighteen hundred and seventy, or other acts in addition 
thereto, in respect to children maintained wholl}' or in part 
b}' the state, and to the indenture of children from the state 
institutions, shall hereafter apply also to all minor children 
supported at the expense of any city or town : provided, 
that no such child shall be removed from an}' city or town 
without the consent of the overseers of the poor thereof. 4 

i Stats. 1871, ch. 42. v. Greer, 10 Allen, 389; Meredith v. 

2 Stats. 1875, ch. 109. Wall, 14 Allen, 155. 

3 Gen. Stats, ch. 72 ; Grant v. * gtats. 1871, ch. 370. 
Barry, 9 Allen, 459; Wheelwright 



174 TOWN AND PARISH OFFICER. 

61. An} 7 town in this commonwealth, which shall have 
accepted the provisions of this act (this and four follow- 
ing sections) at any annual meeting thereof, may, at such 
or any annual meeting thereafter, elect by written ballot 
from the inhabitants thereof three persons to be overseers 
of the poor in such town, one person for one year, one 
person for two years, and one person for three years, and 
thereafter at the annual meeting in like manner may elect 
one person to serve for three years, and these persons so 
chosen shall constitute the board of overseers of the poor 
in such town. 

62. The members of said boards shall hold office until 
others are elected and qualified in their stead ; vacancies 
from any cause may be filled by a new choice at any legal 
meeting, and the person chosen to fill any vacancy shall 
hold office during the unexpired term, and until another is 
chosen and qualified in his stead. 

63. Said boards shall meet and organize annually within 
seven days after the annual town meeting, b}' the choice 
of a chairman and secretary, which last-named officer may 
be from their own number or otherwise. 

64. Said boards shall cause books to be kept, wherein 
shall be entered in a neat and methodical style all infor- 
mation in regard to such needy persons as shall have been 
aided under their direction, that is required by the general 
laws of this commonwealth ; and also all further informa- 
tion in regard to every individual case of relief given, 
asked for, or refused, as may be of importance to their 
towns or the commonwealth to preserve, stating the 
amount and kind of aid given, and the reasons for giving 
such aid or of refusing the same ; such information to be 
so arranged as to be readily referred to upon the books. 

65. The acceptance of this act by any town may at any 
subsequent annual meeting thereof be revoked by such 
town, and thereupon this act shall cease to be operative 
in such town. 1 

66. Any city or town through its authorities, having 

l Stats. 1877, ch. 186. 



DUTIES OF OVERSEERS OF THE POOR, ETC. 175 

charge of the execution of the laws for the maintenance 
of the poor, ma}', if said authorities deem that the same is 
for the public interest, furnish temporaiy aid to poor per- 
sons found within its limits, having no settlement within 
the commonwealth, and the expense thereb} T incurred, after 
notice has been sent as hereinafter provided, shall be re- 
paid from the treasury of the commonwealth to such city 
or town : provided, that said authorities shall give imme- 
diate notice by mail in each case to the general agent of 
state charities, who in person or by one of his assistants 
shall examine the case and direct the continuance of such 
aid, or removal to the state almshouse or to some place 
outside the commonwealth, either before or after removal 
to the state almshouse, in accordance with existing laws ; 
and provided, also y that except in cases of sick state poor 
such aid shall not be furnished at any one time for a longer 
period than four weeks, or to a greater amount than one 
dollar per week for each person, or five dollars per week 
for each family ; and provided, also, that all claims of cities 
and towns against the commonwealth, for furnishing aid 
under the provisions of this act, shall be rendered in detail 
and shall be approved by the general agent of state chari- 
ties before the same shall be paid. 1 

Nothing contained in this section shall be construed to alter or 
repeal any of the provisions of law in regard to the sick state poor, 
or persons ill with contagious diseases. 1 

67. Any new city or town which has been or shall be 
incorporated, composed of a part of one or more incorpo- 
rated places, shall be liable for the support of all persons 
who now do or hereafter shall stand in need of relief as 
paupers, and have or shall become chargeable to any of 
said incorporated places by force of chapter three hundred 
and ninety-two 2 of the acts of eighteen hundred and 
seventy, and chapter three hundred and seventy-nine of 
the acts of eighteen hundred and seventy-one : provided, 
the person enlisted, at the time of such enlistment, dwelt, 

i Stats. 1877, ch. 183. 2 stats. 1872, ch. 323. 



176 TOWN AND PARISH OFFICER. 

and had his home in the territory embraced within the 
limits of such new city or town. 1 

68. The overseers of the poor of any town or city, or 
keepers of almshouses acting under their directions, may 
require any person, not a resident of said town or city ap- 
plying to them for and receiving from them food and lodg- 
ing or either in an almshouse or other place, to perform 
a reasonable amount of labor in return for such food and 
lodging and ma} 7 detain such person until the same is per- 
formed, but not beyond the hour of eleven in the forenoon 
of the day succeeding his application ; and if any such 
person shall refuse or neglect when so required to perform 
such labor suited to his age, strength, and capacit}^, or wil- 
fully damage any of the property of such town or city in 
the charge of such overseers or other officers, he shall be 
deemed a vagrant within the meaning of the statutes relat- 
ing to vagrants and vagabonds, and may be prosecuted 
and punished in the manner provided by chapter two hun- 
dred and fifty-eight of the acts of the year eighteen hun- 
dred and sixty-nine, or as otherwise provided by law. 2 

If a pauper having a legal settlement in any place becomes an 
inmate of either of the state almshouses, such place shall be liable 
to the commonwealth for the expense incurred for him, in like man- 
ner as one town is liable to another in like cases; and the same 
measures shall be adopted by the inspectors and the board of state 
charities, through their general agent, in regard to notifying towns 
so liable, the removal of the pauper, and the recovery from towns of 
expenses incurred for him, as are prescribed for towns in like cases. 
If any person committed to the state workhouse under chapter two 
hundred and eighty-eight of the statutes of eighteen hundred and 
seventy shall have a legal settlement in any city or town in this com- 
monwealth, the said city or town shall pay for his support such sum 
per week as may be fixed upon by the said board, and all moneys so 
received shall be paid into the treasury in the manner now provided 
by law. 3 

i Stats. 1872, ch. 280. 3 Q e n. Stats, ch. 71, § 49; Stats. 

2 Stats. 1875, ch. 70. 1875, ch. 94. 



THE SETTLEMENT OF PAUPERS. 177 



CHAPTER XX. 

THE SETTLEMENT OF PAUPERS. 

1. Legal settlements may be acquired in any city oi 
town, so as to oblige such place to relieve and support the 
persons acquiring the same, in case they are poor and 
stand in need of relief, in the manner following, and not 
otherwise : namely, — 

First. A married woman shall follow and have the set- 
tlement of her husband, if he has any within the state ; 
otherwise her own at the time of marriage, if she then had 
any, shall not be lost or suspended by the marriage. 

Second. Legitimate children shall follow and have the 
settlement of their father, if he has any within the state, 
until they gain a settlement of their own ; but if he has 
none, they shall in like manner follow and have the settle- 
ment of their mother, if she has any. 1 

But a minor child, having the settlement of its deceased father, 
does not lose it, and acquire the settlement of its mother, on her gain- 
ing a new settlement by a second marriage. 2 

Third. Illegitimate children shall follow and have the 
settlement of their mother at the time of their birth, if she 
then has any within the state ; but neither legitimate nor 
illegitimate children shall gain a settlement by birth in the 
place where they may be born, if neither of their parents 
then has a settlement therein. 3 

If the parents of illegitimate children intermarry, and the father 
acknowledges them as his, the children are made legitimate to all in- 
tents and purposes, and thereupon take the settlement of the father. 4 

Fourth. Any person of the age of twenty-one years, 
having an estate of inheritance or freehold in any place 

1 Stats. 1878, ch. 190, § 1. 3 Stats. 1878, ch. 190, § 1. 

2 Walpole v. Marblehead, 8 Cush. * Monson v. Palmer, 8 Allen, 551; 
528. Gen. Stats, ch. 91, § 4. 

12 



178 TOWN AND PARISH OFFICER. 

within the state, and living on the same three years suc- 
cessively, shall thereby gain a settlement in such place. 1 

But such person does not acquire a settlement in a town, if he 
receives support as a pauper, during those three years, from the town 
in which he had his settlement. 

And such support granted to such person, as a pauper, by the over- 
seers of the poor of the town in which he has a settlement, will pre- 
vent his acquiring a settlement in another town in which he resides, 
although the act of the overseers, in granting such support, be not 
ratified by the town of whose poor they are overseers. 2 

And one living three years in any town within this state, on land 
conveyed to him by a warranty deed, gains a settlement in such town, 
although his grantor had in fact no title to the land. 3 

Otherwise, however, where a person lives in a town undisturbed 
for three years in a house built by mistake upon the land of another 
adjacent to his own land, and having out-buildings upon his own 
land.* . 

Neither does a tenant by the curtesy initiate in land held by his 
wife to her sole and separate use gain a settlement after the required 
residence. 5 

Nor does a person obtain a settlement in a town where he owns a 
freehold, if before he has lived thereon for three years successively 
he is committed to the state lunatic hospital and there supported as a 
pauper; although his family continue to reside on his land for the 
residue of the three years. 6 

It is now determined that it is not necessary to prove that the deed 
was recorded, under which land was held, in order to establish a set- 
tlement under this clause. 7 

Fifth. Any person of the age of twenty-one years, who 
resides in any place within this state for five years together, 
and pays all state, county, city, or town taxes, duly 
assessed on his poll or estate for any three years within that 
time, shall thereb}^ gain a settlement in such place. 8 

A person does not acquire a settlement in a town by residing 
therein ten years together, and paying taxes for five of those years, 
if he receives aid as a pauper, from such town, before the expiration 
of the ten years ; 9 nor if a town has paid for his support while con- 

i Stats. 1878, ch. 190, § 1. 6 Choate v. Rochester, 13 Gray, 92. 

2 Oakham v. Sutton, 13 Met. 192. * Belchertown v. Dudley, 6 Allen, 

3 Bovlston v. Clinton, 1 Gray, 619. 477. 

4 Wellfleet v. Truro, 9 Allen, 137. 8 Stats. 1878, ch. 190, § 1. 

5 Leverett v. Deerfield, 6 Allen, 9 West Newbury v. Bradford, 3 
431. Met. 428. 



THE SETTLEMENT OF PAUPERS. 179 

fined in its workhouse, on conviction of a criminal offence ; * nor if, 
during his residence, the assessors omit to tax him, although pos- 
sessed of real and personal estate ; such omission being not on account 
of his infirmity or poverty, or by mistake, but in order to prevent his 
acquiring a settlement; 2 nor if, during his residence, he is supplied by 
the town in which he has a settlement, with money to aid him in sup- 
porting his helpless children; 3 nor if his wife is committed to the 
state lunatic hospital upon his complaint, or with his knowledge, and 
remains there at the expense of any town, or of the commonwealth, 
without paying for her support, during part of the time necessary to 
give him a settlement. 4 It is otherwise, however, if the wife is so 
supported without the husband's knowledge, and it does not appear 
that he was ever called upon to pay for such support, or was unable 
to pay for it. 5 

But insanity occurring after the person has become an inhabitant 
of a town will not prevent his acquiring a settlement by the requisite 
residence therein. 6 

And the assessment of a tax on real estate to the occupant, and 
the payment of the same by him, not as of his own estate, but in 
right of another, are a sufficient assessment and payment of a tax 
within the provisions of this clause, for acquiring a settlement as a 
pauper in the town where such party resides. 7 

A domicile once acquired is presumed to continue until a subse- 
quent change is shown : this is a rule applicable to cases of settle- 
ment. 8 

And absence from a town, without a definite purpose at all events 
to return to it as a home, will not interrupt the residence requisite to 
a settlement under this clause, until a new domicile is acquired 
elsewhere. 9 

Sixth. Any woman of the age of twenty-one years, who 
resides in any place within this state for five 3-ears together 
without receiving relief as a pauper, shall thereby gain a 
settlement in such place. 10 

But a person does not gain a settlement by paying taxes five years 

1 Worcester v. Auburn, 4 Allen, 6 Chicopee v. Whately, 6 Allen, 
574. 508. 

2 Berlin v. Bolton, 10 Met. 115. 7 Randolph v. Easton, 4 Cush. 557. 

3 Taunton v. Middleboro\ 12 Met. 8 Chicopee v. Whately, 6 Allen, 
35. 508. 

4 Charlestown v. Groveland, 15 9 Worcester v. Wilbraham, 13 
Gray, 15 ; Woodward v. Worcester, Gray, 586 ; Lee v. Lenox, 15 Gray, 
15 Gray, 19. 496." 

5 Berkeley v. Taunton, 19 Pick. 10 Stats. 1878, ch. 190, § 1. 
480. 



180 TOWN AND PARISH OFFICER. 

successively on real estate, of which he is in possession as tenant at 
will, 1 or at sufferance. 2 

Seventh. Any person being chosen and actually serving 
one whole year in the office of clerk, treasurer, selectman, 
overseer of the poor, assessor, constable, or collector of 
taxes, in any place, shall thereby gain a settlement therein. 
For this purpose a year shall be considered as including 
the time between the choice of such officers at one annual 
meeting and the choice at the next annual meeting, whether 
more or less than a calendar year. 

Eighth. Every settled ordained minister of the gospel 
shall be deemed to have acquired a legal settlement in the 
place wherein he is or may be settled as a minister. 3 

Where a minister who has been regularly ordained in one town is 
afterwards settled in another, as a pastor, with the full character, 
rights, and duties of a pastor, but without any new ordination or 
ceremony of induction, or for a limited time, as for a year, he will by 
such settlement, as a minister, acquire a settlement as a pauper in the 
latter town. 4 

Ninth. A minor who serves an apprenticeship to a law- 
ful trade for the space of four years in any place, and 
actually sets up such trade therein within one year after the 
expiration of said term, being then twenty-one years old, 
and continues there to carry on the same for five 3'ears, 
shall thereby gain a settlement in such place ; but being 
hired as a journeyman shall not be considered as setting 
up a trade. 

Tenth. Any person who shall have been duly enlisted 
and mustered into the military or naval service of the 
United States, as a part of the quota of any city or town 
in this commonwealth, under any call of the President of 
the United States during the late civil war, or duly assigned 
as a part of the quota thereof, after having been enlisted 
and mustered into said service, and shall have duly served 
for not less than one year, or shall have died, or become 

1 Southbridge v. Warren, 11 Cush. 3 gtats. 1878, ch. 190, § 1. 

292. 4 Bellingham v. West Boylston, 4 

2 Dover v. Brighton, 2 Gray, 482. Cush. 553. 



THE SETTLEMENT OF PAUPERS. 181 

disabled from wounds or disease received or contracted 
while engaged in such service, or while a prisoner in the 
hands of the enemy, and the wife or widow and minor 
children of such person, shall be deemed thereby to have 
acquired a settlement in such place ; and any person who 
would otherwise be entitled to a settlement under this 
clause, but who was not a part of the quota of any city or 
town, shall, if he served as a part of the quota of this com- 
monwealth, be deemed to have acquired a settlement in the 
place where he actuallv resided at the time of his enlist- 
ment. But these provisions shall not apply to any person 
who shall have enlisted and received a bounty for such 
enlistment in more than one place, unless the second enlist- 
ment was made after an honorable discharge from the first 
term of service, nor to any person who shall have been 
proved guilty of wilful desertion, or to have left the service 
otherwise than by reason of disability or an honorable 
discharge. 

Eleventh. Upon the division of a city or town, every 
person having a legal settlement therein, but being absent 
at the time of such division, and not having acquired a 
legal settlement elsewhere, shall have his legal settlement 
in that place wherein his last dwelling-place or home hap- 
pens to fall upon such division ; and when a new city or 
town is incorporated, composed of a part of one or more 
incorporated places, every person legally settled in the 
places of which such new city or town is so composed, and 
who actually dwells and has his home within the bounds 
of such new city or town at the time of its incorporation, 
and any person duly qualified as provided in the tenth 
clause of this section, who, at the time of his enlistment, 
dwelt and had his home within such bounds, shall thereby 
acquire a legal settlement in such new place : provided, 
that no persons residing in that part of a place, which, 
upon such division, shall be incorporated into a new city 
or town, having then no legal settlement therein, shall 
acquire any by force of such incorporation only ; nor shall 
such incorporation prevent his acquiring a settlement there- 



182 TOWN AND PARISH OFFICER. 

in within the time and by the means by which he would 
have gained it there if no such division had been made. 

2. No person who has begun to acquire a settlement by 
the laws in force at and before the time when this act takes 
effect, in any of the ways in which any time is prescribed 
for a residence, or for the continuance or succession of 
any other act, shall be prevented or delayed by the provi- 
sions of this act ; but he shall acquire a settlement by a 
continuance or succession of the same residence or other 
act, in the same time and manner as if the former laws had 
continued in force. 

3. Except as hereinafter provided, every legal settle- 
ment shall continue till it is lost or defeated by acquiring a 
new one wdthin this state ; and upon acquiring such new 
settlement all former settlements shall be defeated and 
lost. 

4. All settlements acquired by virtue of any provision 
of law in force prior to the eleventh day of Februar}^ in the 
year one thousand seven hundred and ninety-four are 
hereby defeated and lost : provided, this shall not apply 
where the existence of such settlement prevented a subse- 
quent acquisition of settlement in the same place under 
the provisions of clauses fourth, fifth, sixth, seventh, eighth, 
ninth, tenth, and eleventh of the first section of this act, 
or under the same provisions in other statutes existing prior 
to the passage of this act ; and provided, further, that, 
whenever a settlement acquired by marriage has been thus 
defeated, the former settlement of the wife, if not defeated 
b}^ the same provision, shall be deemed to have been there- 
by revived. 

5. Chapter sixty-nine of the General Statutes, chapter 
two hundred and eighty-eight of the acts of the year one 
thousand eight hundred and sixty-six, section one of chap- 
ter three hundred and twenty-eight of the acts of the year 
one thousand eight hundred and sixty-eight, chapter three 
hundred and ninet3^-two of the acts of the year one thou- 
sand eight hundred and seventy, chapter three hundred 
and seventy-nine of the acts of the year one thousand eight 



THE SETTLEMENT OF PAUPERS. 183 

hundred and seventy-one, chapter two hundred and eighty 
of the acts of the year one thousand eight hundred and 
seventy- two, and chapter two hundred and seventy-four 
of the acts of the year one thousand eight hundred and 
seventy-four, are hereby repealed, saving all acts done, or 
rights accruing, accrued, or established, or proceedings, 
doings, or acts ratified or confirmed, or suits or proceed- 
ings had or commenced, before the repeal takes effect. 1 

6. Any Indian or person of color belonging to any of 
the Indian tribes specially enumerated in the first section 
of this act, 2 and to whom the rights of citizenship are not 
hereby extended, and who desires to possess such rights, 
may, if residing within the limits of any city or town of 
this commonwealth, certify his desire to the clerk of said 
city or town, who shall make record of the same ; and, 
upon paying a poll-tax, he shall become to all intents and 
purposes a citizen of the state, and shall not thenceforward 
return to the legal condition of an Indian. Settlement 
shall be acquired by those who thus become citizens, in 
the same manner as by other persons ; and any such citizen 
becoming a pauper without having acquired a settlement 
shall be deemed a state pauper. 

But by statutes of 1869, ch. 463, all Indians in this commonwealth 
are made citizens, entitled to all the rights and privileges and subject 
to all the duties and liabilities of citizens. 

7. Any convict who, at the legal expiration of his sen- 
tence, is in such condition from bodily infirmity or disease 
as to render his removal impracticable, shall be provided for 
and receive such treatment in the state prison, jail, house 
of correction, or house of industry in which he was con- 
fined, as the exigency of the case may require, until he is 
in a condition to be removed. The expense of such care 
and treatment of any discharged convict shall be paid, at 
a rate not exceeding three dollars and fifty cents per week, 
by the city or town where he may have a legal settlement, 
after notice upon expiration of sentence shall have been 

i Stats. 1878, ch. 190. 2 Stats. 1862, ch. 184, § 2. 



184 TOWN AND PARISH OFFICER. 

given by the authorities of the prison to the overseers of 
the poor of the city or town liable for his support, or to 
the board of state charities, if he be a state pauper, of the 
condition of said discharged convict. 1 

1 Stats. 1874, ch. 170. 



WORKHOUSES AND ALMSHOUSES. 185 



CHAPTER XXI. 

WORKHOUSES AND ALMSHOUSES. 

1. A city or town may erect or provide a workhouse or 
almshouse for the employment and support of poor and 
indigent persons who are maintained bj or receive alms 
from the city or town ; persons who, being able of body 
to work, and not having estate or means otherwise to 
maintain themselves, refuse or neglect to work ; persons 
who live a dissolute, vagrant life, and exercise no ordinary 
calling or lawful business ; persons who spend their time 
and propert} 7 in public houses to the neglect of their proper 
business, or who, by otherwise misspending what they 
earn, to the impoverishment of themselves and their fami- 
lies, are likely to become chargeable to the city or town ; 
and other persons sent thereto under any provisions of 
law. 

2. No city or town shall erect or maintain an almshouse 
or house of correction within the limits of any other place, 
without the consent of such other place. 

3. Every city or town having a workhouse or almshouse 
may annually choose three, five, seven, or more directors, 
who shall have the inspection and government thereof, 
and who ma}^ appoint a master and necessary assistants 
for the more immediate care and superintendence of the 
persons received or employed therein. Where such direc- 
tors are not specially chosen, the overseers of the poor 
shall be the directors. 

4. Once in every month, and at other times as occasion 
may require, the directors shall hold meetings for the pur- 
pose of determining the most eligible mode of discharging 
their duties. At such monthly meetings they may make 
needful orders and regulations for the house, which shall 



186 TOWN AND PARISH OFFICER. 

be binding until the next meeting of the town or of the 
city council, when the same shall be submitted to such 
meeting ; and, if approved, shall remain in force until re- 
voked by the town or the city council. 

5. Any number of cities or towns may, at their joint 
charge and for their common use, erect or provide a work- 
house or almshouse, and purchase land for the use thereof. 

6. The ordering, governing, and repairing of such 
house, the appointment of a master and necessary assist- 
ants, and the power of removing them for misconduct, 
incapacity, or other sufficient cause, shall be vested in a 
joint board of directors, who shall be chosen annually by 
the several places interested. 

7. Unless all the places interested in such house shall 
agree to choose a different number, each of them shall 
choose three members of the board ; and in case of the 
death of a director, or of his removal from the place for 
which he was chosen, the vacancy may be supplied by such 
place. If a place neglects to choose directors, those 
chosen by the other places shall have the whole charge of 
the house. 

8. Stated quarterly meetings of the board shall be 
holden on the first Tuesdays of January, April, July, and 
October, at the workhouse or almshouse under their charge, 
for the purpose of inspecting the management and direct- 
ing the business thereof. Meetings of the board may be 
called at other times by the directors chosen by any place 
interested, they giving notice of the time and purpose 
thereof to the other members of the board in such manner 
as shall have been agreed upon at a stated meeting. 

9 . The board of directors may choose a moderator ; and 
at their first general meeting they shall appoint a clerk, 
who shall be sworn and shall record all votes and orders of 
the board. 

10. At a general quarterly meeting, if one half of the 
members are present, they may make reasonable orders 
and by-laws not repugnant to the laws of the Common- 
wealth for ordering and regulating the house under their 



WORKHOUSES AND ALMSHOUSES. 187 

charge, and may agree with the master and assistants, and 
order a suitable compensation for their services. 

11. Other matters may be acted upon at any other 
meeting duly notified, if one third of the members are pres- 
ent ; but the doings of such meetings may be altered or 
revised at any general stated meeting. 

12. The yearly compensation of the master and assist- 
ants (in addition to the allowance hereafter provided in 
this chapter for their services) , and also the expense of 
keeping the house in repair, shall be paid by the several 
places interested, in proportion to their state tax at the 
time when the expense may have been incurred, or in such 
proportion as the places interested shall agree. 

13. If a place refuses or neglects to advance or reimburse 
its proportion of the sums of money mentioned in the pre- 
ceding section, or of any other charges mentioned in this 
chapter, after the same have been adjusted by the joint 
board of directors, the same may be recovered of such de- 
linquent place in an action of contract brought by any 
person whom the board shall in writing appoint for that 
purpose. 

14. No greater number of persons belonging to a city or 
town shall be received into such workhouse or almshouse 
than such city's or town's proportion of such house, when 
the receiving of them would exclude or be inconvenient to 
such as belong to the other places interested. 

15. If any place refuses or neglects to provide its pro- 
portion of the necessary expenses of such house, or of the 
materials, implements, or other means, for performing the 
work there required, according to its agreement or the di- 
rections of the joint board of directors, such place shall be 
deprived of # the privilege of sending any person thither 
during the time of such neglect or refusal. 

16. Each place may furnish such additional materials, 
implements, and means of work, as the overseers of the 
poor thereof may choose, for the employment of any person 
committed to such house ; and the master of the house 
shall receive the same, and keep them separate from those 



188 TOWN AND PARISH OFFICER. 

of the other places, and shall be accountable to each place 
interested, as well for the cost as for all profits and earn- 
ings made by the labor of the persons committed to said 
house from such place. 

17. The master of each workhouse and almshouse shall 
keep a register of the names of the persons committed or 
received, the places to which they belong, the dates of their 
reception and discharge, and of their respective earnings, 
to be submitted to the overseers of the poor upon their 
request. 

18. Controversies between the masters and the overseers 
of the poor of any place, respecting the accounts or other 
official doings of the masters, shall be determined by the 
directors of the house at their general or quarterly meeting. 

19. The profits and earnings arising from the work of 
persons committed to the workhouse or almshouse, with 
the stock remaining on hand, shall be disposed of as the 
overseers of the poor of the several places shall think 
proper, either to the use of their cities or towns, the per- 
sons committed, or their families. 

20. No person committed to the workhouse shall be dis- 
charged within the time for which he was committed, 
except by the police court or justice who made the com- 
mitment, the directors of the house at their general or 
quarterly meeting, or by the superior court, at any term 
held in the county where such house is situated, for good 
cause shown upon application for that purpose. 

21. Every person committed to a workhouse shall, if 
able to work, be kept diligently employed in labor during 
the term of his commitment. If he is idle, and does not 
perform such reasonable task as is assigned, or is stubborn 
and disorderly, he shall be punished according |o the orders 
and regulations established by the directors. 

22. When a person, not having a legal settlement in 
this state, shall become idle or indigent, he may be com- 
mitted to the workhouse to be there employed if able to 
labor, in the same manner and under the same rules as 
other persons there committed. 



WORKHOUSES AND ALMSHOUSES. 189 

23. A workhouse or almshouse may be discontinued or 
appropriated to any other use, when the place or places in- 
terested so determine. 

24. Nothing contained in this chapter shall affect any 
powers or privileges heretofore granted to cities or towns, 
or the overseers of the poor thereof, by acts specially re- 
lating to workhouses or almshouses therein. 1 

25. The secretary of the board of state charities shall 
furnish, from time to time, to the keepers of the several 
prisons and workhouses throughout the commonwealth, in- 
cluding the state prison and the houses of industry, refor- 
mation, and correction in the city of Boston the following 
blank schedule for periodical returns, which shall be made 
weekly from all prisons where the commitments average 
ten a week and upwards ; monthly, from all prisons where 
the commitments average between two and ten a week ; 
and once in six months from all other prisons : — 

Admissions. — Registered number ; name ; color ; age ; sex ; birth- 
place ; parents both Americans ; parents both temperate ; parents 
both or either convicts ; ever married ; intemperate; what education ; 
what property ; ever in army or navy ; ever in reform school ; when 
committed ; why committed ; number of former commitments ; when 
discharged ; how discharged ; length of sentence ; number of days 
sick ; number of times punished in prison. 

Discharges. — Registered number ; name ; when committed ; why 
committed; when discharged ; how discharged ; time in prison ; num- 
ber of days sick ; number of times punished in prison ; number re- 
maining by last report ; number committed since last report ; number 
discharged ; number transferred from other jails, &c. ; number trans- 
ferred to other jails, &c. ; number now in confinement. 

26. Every sheriff or prison officer who omits to make 
and transmit, according to the provisions of this act (pre- 
ceding section) , true answers to the inquiries contained in 
the schedules, and every director or county commissioner, 
when his board omits to make and transmit such answers, 
shall forfeit one hundred dollars. 2 

l Gen. Stats, ch. 22, §§ 1-24. 2 stats. 1864, ch. 307, §§ 1, 4. 



190 TOWN AND PARISH OFFICER. 



CHAPTER XXII. 
LAYING OUT AND DISCONTINUANCE OF HIGHWAYS. 

1. When a new highway, from town to town, or from 
place to place within the same town, is wanting, or when 
any highway can with greater public convenience be altered 
or discontinued, application therefor shall be made, by 
petition in writing to the county commissioners who have 
jurisdiction in the place in which such new highway or 
such alteration or discontinuance is wanted. 1 

The word " highway " may include county bridges ; and shall be 
equivalent to the words " county way," " county road," and " common 
road." 2 

2. There should be such a description of the bounds of the road 
prayed for in the petition, as to give substantial notice of what is 
asked and intended to all persons and corporations interested. 3 

3. No petition for the laying out, altering, or discon- 
tinuing, a highway, shall be proceeded upon by the commis- 
sioners, until the petitioners cause a sufficient recognizance 
to be given to the county, with surety to the satisfaction of 
the commissioners, for the payment of all costs and ex- 
penses which shall arise by reason of such petition and the 
proceedings thereon, if the petitioners shall not finally 
prevail. 

4. The commissioners to whom such petition is pre- 
sented shall cause a copy thereof to be served upon the 
clerk of every town within which such new highway, alter- 
ation, or discontinuance, is prayed for, thirty days at least 
before the time appointed for any view or hearing. They 
shall also cause copies of the petition, or abstracts contain- 
ing the substance thereof, to be posted in two public places 

1 Gen. Stats, ch. 43, § 1. 8 Westportt?. County Coinmission- 

2 Gen. Stats, ch. 3, § 7. ers of Bristol, 9 Allen, 203. 



LAYING OUT, ETC., OF HIGHWAYS. 191 

in each of said towns, and shall give notice to all persons 
interested, by causing a like copy to be published three 
weeks successively in such newspaper as they shall order ; 
the posting and the last publication of the copy- to be four- 
teen days at least before any view, hearing, or adjudication, 
on such petition. 1 

5. A town created out of a part of a town already existing, after a 
highway within that part has been adjudged by the county commis- 
sioners to be of common convenience and necessity, and the time for 
locating it fixed, and notice given to the old town, is not entitled to a 
further hearing on the questions of the necessity of the way. 2 

6. They shall view the premises, when they deem it ex- 
pedient or when requested by any party interested ; and, 
before any view, shall give notice in the manner provided 
in the preceding section (section four above) , to all per- 
sons interested, of the time and place for commencing the 
same. 

7. They shall hear the parties, either at the time of the 
view, or at any regular or special meeting, or any adjourn- 
ment thereof, as the}^ determine ; and as soon as may be 
after the hearing they shall consider and adjudicate upon 
the common convenience and necessity of laying out, 
altering, or discontinuing, such highway, as prayed for by 
the petitioners. 

8. When they have adjudicated upon the common con- 
venience and necessity of laying out, altering, or discon- 
tinuing a highway, they shall, as soon as may be, proceed 
to lay out, alter, or discontinue, the same accordingly ; 
first giving such notice 3 thereof as is required before pro- 
ceeding to view, except that instead of a cop}' of the whole 
petition it shall be sufficient to serve and publish an abstract 
thereof. 4 

9. Personal notice to all the proprietors over whose land the way 
passes, is not required by the statute. 5 And county commissioners 

1 Gen. Stats, ch. 43, §§ 2, 3. * Gen. Stats, ch. 43, §§ 4-6. 

2 North Reading v. County Com- 6 Taylor v. County Commissioners, 
missioners, 7 Gray, 109. 18 Pick. 309. 

& See above, section 4. 



192 TOWN AND PARISH OFFICER. 

may lay out a highway at an adjournment of a meeting for that pur- 
pose, of which they have given due notice, without giving a new 
notice of the adjourned meeting. 1 

10. (But) the laying out or alteration of any highway, 
town way, or private way, shall be void as against the 
owner of any land over which the same shall be located, 
unless possession shall be taken of such land for the pur- 
pose of constructing such highway, town way, or private 
way, within two years from the time when the right to 
take possession for such purpose first accrues by law: 
provided, hoivever, that an entry for the purpose of con- 
structing any part of the laying out or alterations in such 
way shall, for the purposes of this act, be deemed a taking 
of possession of all the lands included in the laying or 
alterations made upon the same petition. 2 

11. They may make such changes between the termini 
of the highway described in the petition, with regard to 
the direction, alteration, or discontinuance, thereof, as in 
their opinion the public convenience requires. 

12. If at the time of view, upon a petition for laying out 
or altering a highway, no person interested shall object, 
the commissioners may within six months proceed to lay 
out or alter the same without further notice. If at the 
time of view upon a petition for discontinuing a highway 
the commissioners shall decide that the same ought to be 
discontinued, they may at the same time adjudge and 
determine that it be discontinued without a further or 
subsequent meeting therefor, and may estimate the dam- 
ages caused to any person thereby ; and when a return of 
said proceedings and adjudication is made at the next 
regular meeting of the commissioners and accepted, it 
shall be held to be a discontinuance of such highway. 

13. If, upon a petition for laying out or altering a high- 
way, the commissioners, after having viewed the same and 
heard all persons interested, are of opinion that the exist- 
ing highway between the termini mentioned in the petition 

i Westport v. County Commission- 2 Stats. 1869, ch. 303. 

ers, 9 Allen, 203. 



LAYING OUT, ETC., OF HIGHWAYS. 193 

can be so far amended as to supersede the necessity of 
Isijing out a new highway or altering the location of exist- 
ing waj's, they may, after due notice to the towns inter- 
ested, direct specific repairs to be made in the existing 
ways in such manner as the public convenience requires ; 
and they may apportion the expense of making the same 
upon the county and towns respectively as in laying out 
highways. 1 

14. When in the laying out, widening or relocating any 
highway the county commissioners of any county shall 
require the making of any culvert, cattle-pass or other pas- 
sage-way through or under the highway as the commis- 
sioners shall direct the same to be made and worked, said 
commissioners may order and require the town in which 
such highway is located, to construct such culvert, cattle- 
pass or other passage-way, and the town shall construct 
the same as a part of the highway. And the county com- 
missioners may reimburse to said town out of the county 
treasury, such portion of the cost of the same, if anj^, as 
justice and equity may in their judgment require. 2 

15. Where a town has due notice of the application of individuals 
to the county commissioners for the alteration of a road within the 
town, alleged in such application and in all the proceedings thereon 
to be a highway, and also has due notice of the proceedings of the 
commissioners in directing specific repairs to be made on said road by 
the town, and does not object that said road is a town way and not a 
highway, until after the commissioners have caused such repairs to be 
made, upon the neglect of the town to make them as ordered, and 
after the town is served with notice, to show cause why a warrant of 
distress should not issue against the inhabitants of the town for the 
collection of its proportion of the expense of such repairs, a writ of 
certiorari will not be granted to remove the records of the com- 
missioners, on the ground that the road was a town way, and that 
they therefore had no jurisdiction. Nor will a writ of prohibition 
be granted to restrain the commissioners from issuing such warrant of 
distress. 3 

16. At the time of ordering specific repairs upon 
an existing highway, they may direct it to be closed to 

1 Gen. Stats, ch. 43, §§ 7-9. 3 Whately v. County Commission- 

2 Stats. 1867, ch. 256. ers of Franklin, 1 Met.' 336. 

13 



194 TOWN AND PARISH OFFICER. 

the public travel for such time as they may deem reason- 
able. 

17. Towns in which specific repairs are ordered to be 
made shall be liable to make the same, and be entitled to 
a trial by jury in like manner as is provided in laying out 
highways. 

18. When application is made to the commissioners by 
a town, or by five inhabitants of a town, to locate anew a 
road within such town, whether the same were laid out by 
the authority of the town or otherwise, they may, either 
for the purpose of establishing the boundary lines of such 
road or of making alterations in the course or width 
thereof, locate it anew after giving like notice and pro- 
ceeding in the manner prescribed in laying out highways. 
The expense shall be assessed upon the (abuttors x ) or the 
petitioners, or upon the town or county, as the commis- 
sioners order. 2 

19. A party aggrieved by the action of county commissioners in 
locating a road anew, for the purpose of establishing the boundary 
line thereof, is entitled to a jury to determine his damages, in the 
same manner as in an original laying out of such road. 3 

20. The " expenses " arising in the case, which a town applying to 
the county commissioners to locate anew any road within the town is 
obliged to pay, include the damages occasioned to the owners of land 
by such location. 4 

21. When a highway is laid out or altered, the commis- 
sioners shall in their return determine and specify the 
manner in which such new highway or alteration shall be 
made, and also the time within which it shall be completed ; 
and shall transmit to the clerks of the several towns in 
which said highway lies a description of the location and 
bounds thereof within the limits of such towns respectively, 
which description shall be recorded within ten days by the 
clerk in a book of records kept in the town for that pur- 
pose. They shall also allow the owner of the land a 
reasonable time to take off his timber, wood, or trees, 

i Stats. 1873, ch. 165. 3 Hadley v. County Commission- 

2 Gen. Stats, ch. 43, §§ 10-12. See ers of Middlesex, 11 Cash. 394. 
chapter on Betterments. 4 Damon v. Reading, 2 Gray, 274. 



LAYING OUT, ETC., OF HIGHWAYS. 195 

which shall be expressed in their return. If he shall not 
remove the same within the time allowed, he shall be 
deemed to have relinquished his right thereto for the ben- 
efit of the town. 

The provision applies also to buildings, and parts of buildings, 
materials of walls and fences, growing crops, and generally every thing 
valuable to the owner, but inconvenient or unsuitable to be left within 
the limits of the way. 1 

22. If damage shall be sustained by any persons in their 
property, by the la}ing out, altering, or discontinuing, a 
highway, the commissioners shall estimate the amount, and 
in their return state the share of each separately ; but they 
shall not order such damages to be paid, nor shall a person 
claiming damage have a right to demand the same, until 
the land over which the highway or alteration is located has 
been entered upon and possession taken for the purpose of 
constructing it. But when a person so claiming damages 
has been put to trouble and expense b} r the proceedings, 
the commissioners shall allow him full indemnity therefor, 
instead of the damages awarded, although no entry is 
made upon his land. 2 

23. The damage to the owner of lands over which a highway is 
laid out and established is practically equivalent to the whole value 
of the land. For the public have a right to hold a perpetual ease- 
ment; and the strong probability and the result usually is, that the 
easement for the public is of such a nature that substantially it 
deprives the owner of all, or nearly all, beneficial use of the land, and 
leaves him a barren fee only. Therefore it is that, in estimating the 
damages which the public shall pay for such an easement upon the 
land, the question resolves itself into this, What is the value of 
the land, the benefit of which is almost wholly lost to the owner 
by so large and perpetual a lien 1 8 

24. When county commissioners, on laying out a highway or order- 
ing specific repairs therein, make no return of damages sustained by 
a party who has applied to them to estimate his damages, it is equiv- 
alent to a return that he has sustained no damage ; and the party 

1 Commonwealth v. Noxon, 121 8 Harrington, Jr. v. County Corn- 
Mass. 42. missioners of Berkshire, 22 Pick. 

2 Gen. Stats, ch. 43, §§ 13, 14. 263. 



196 TOWN AND PARISH OFFICER. 

aggrieved must apply for a jury within the same time as if the com- 
missioners had expressly returned that he had- sustained no damage.* 

25. The provision of the statute that " they shall not order such 
damages to he paid, nor shall a person claiming damage have a right 
to demand the same, until the land over which the highway or altera- 
tion is located has been entered upon, and possession taken for the 
purpose of constructing it," applies to all public, travelled ways, 
whether town ways or county ways ; but it does not prohibit a person 
over whose land a town way is laid out by the commissioners, and who 
is aggrieved by their estimate of his damage from having the damage 
assessed by a jury before his land is entered upon, and possession 
thereof taken, for the purpose of constructing the way. 2 

26. The powers of the commissioners extend alike to highways, 
town ways, and private ways, and are not thereby restricted to high- 
ways in the limited meaning of that term ; but as it is used in its 
popular sense, to extend to travelled ways in relation to which 
they are called upon, under the provision of the statute to direct or 
adjudicate. 3 

27. But county commissioners have no authority to order a town 
to pay damages to an individual for land taken for a highway. 4 

28. When specific repairs are ordered to be made in a 
highway which occasion damage to any person or property, 
the commissioners shall estimate the same, and make re- 
turn thereof; and at their first meeting after the repairs 
are completed, they shall order the damage to be paid. 
But if the order for repairs does not go into effect, or is re- 
scinded or altered, they shall order only so much of the 
damage to be paid as in their opinion has been actually 
sustained. 

29. In estimating the damage sustained by laying out, 
locating anew, altering or discontinuing, a highway, or by 
an order for specific repairs, regard shall be had to all the 
damages done to the party, whether by taking his property 
or injuring it in any manner ; and there shall be allowed, 
by way of set-off, the benefit, if any, to the property of the 
party by reason thereof. 5 

1 Monagle v. County Commission- 98; Harding v. Medway, 10 Met. 
ers of Bristol, 8 Cush. 360. 465. , . 

2 Harding v. Medwav, 10 Met. 4 Westport v. County Commission- 
465 . ers of Bristol, 9 Allen, 203. 

3 Jones v. Andover, 6 Pick. 59; 5 Gen. Stats, ch. 43, §§ 15, 16. 
Commonwealth v. Hubbard, 24 Pick. 



LAYING OUT, ETC., OF HIGHWAYS. 197 

30. In estimating the damage to the land-owner caused by the 
laying out of a public street over his land, neither the city or town 
authorities, nor a jury, are confined to the value of the land covered 
by the street. He is also entitled to the amount of the damage done 
to his remaining land by the laying out of the street. 1 

31. And the assessment is to be made according to the effect of the 
taking of the land at the time it was taken. And not as the land then 
lay unfitted for use as a street, but according to the prospective use 
of the street when wrought and fitted for use as a part of the street, 
for a sidewalk or carriage-way ; and its effect upon the residue of the 
land when thus fitted for use as part of the street. Its value for the 
purpose of building is also to be considered. 2 

32. And if the owner of the land has built a house on a part thereof 
over which there is a right of way, he may recover, as part of the 
damage occasioned by the subsequent taking of the land for a high- 
way, the value of the right to have the house remain on the land 
until its removal be required by the owner of the right of way. 3 

33. In estimating the damages occasioned by taking land for a high- 
way, any direct and peculiar benefit or increase of value, accruing to 
land of the same owner adjoining or connected with the land taken, 
is to be allowed by way of set-off ; but not any general benefit or in- 
crease of value, received by such land in common with other land in 
the neighborhood. 4 

34. The discontinuance of a highway gives no right to recover 
damages to the owner of land abutting on the way discontinued, and 
accessible by other ways. 5 

35. When persons having a claim for damages sustained 
in their property by the laying out, alteration, or discon- 
tinuance, of a highway, have different or separate interests 
in the property, so that an estate for life or for a term 
of years in the same, belongs to one person, and the re- 
mainder or reversion in fee belongs to another, entire dam- 
ages, or an entire sum as indemnity, shall be assessed in 
the same manner as is provided in other cases, without any 
apportionment thereof ; and the amount of such damages 
or indemnity shall be paid over to or be recoverable by any 

i First Church in Boston v. City of Br. R. R. Co., 8 Cush. 600; Farwell 

Boston, 14 Gray, 214. v. Cambridge, 11 Gray, 413 ; Dicken- 

2 Dickenson v. Fitchburg, 13 Gray, son v. Fitchburg, 13 Gray, 546. See, 
546. in this connection, chapter on Better- 

3 Tufts v. Charlestown, 4 Gray, ment Law, hereafter. 

537. 5 Castle v. County of Berkshire, 

4 Meacham v. Fitchburg R. R. Co., 11 Gray, 26. 
4 Cush. 291; Upton v. S. Reading 



198 TOWN AND PARISH OFFICER. 

person whom the parties owning the several interests may 
appoint, to be invested by him, when paid over or recov- 
ered, in bond, mortgage, or other good securities, and held 
in trust for the benefit of the parties according to their 
several interests ; the annual income to be paid over to the 
person in whom was the estate for life or term of years, for 
the period such estate might have continued, and the re- 
mainder after the termination of such estate to be paid over 
absolutely to the person that was entitled to the reversion 
in fee, or to his heirs or devisees. 

36. If any of the persons having an interest in such 
property shall, by reason of legal disability, be incapaci- 
tated from choosing a trustee, or if the parties in interest 
cannot agree upon a choice, the probate court of the 
county in which the propert}^ is situated, upon application, 
shall appoint some suitable person as trustee. Said trustee 
shall before entering upon the duties of his trust give a 
bond to the judge of probate and insolvenc}^, with sufficient 
surety or sureties, in such penal sum as the judge directs, 
conditioned for the faithful performance of his duties as 
trustee under the provisions of this and the preceding sec- 
tion : which bond upon breach of its condition may be put 
in suit by order of the probate court for the use and benefit 
of the persons interested in the trust property, in like 
manner as is provided in case of bonds given by executors 
or administrators. 1 

37. In all cases of the assessment of the damages sus- 
tained by land-owners b}~ reason of the laying out, altera- 
tion, or discontinuance of a highway, whenever it shall 
appear that the real estate taken or affected is encumbered 
by any contingent remainder, executory devise, or power 
of appointment, the assessment of damages shall proceed, 
and the damages recovered shall be paid over to a trustee 
or trustees in the manner provided for the assessment of 
damages where there are different and separate vested 
interests in the property, in section seventeen of chapter 
forty-three of the General Statutes. 

i Gen. Stats, ch. 43, §§ 17, 18. 



LAYING OUT, ETC., OF HIGHWAYS. 199 

38. The trustee or trustees to whom such damages are 
to be paid, as provided in the foregoing section, shall be 
appointed by the probate court for the county where the 
land is situated, on petition of the county commissioners 
or of any person in possession and enjoyment of the land 
either as tenant of a freehold estate or of a term of years ; 
and in case the commissioners and such tenant in posses- 
sion shall neglect or refuse to file such petition, then said 
trustee or trustees ma}' be appointed on petition of any 
person, filed in behalf of such persons, whether in being 
or not, as may by any possibility be or become interested 
in the property, and the trustee or trustees, so appointed, 
shall hold and invest the funds so received by him or them 
for the benefit of the persons who would have been enti- 
tled to said estate, in the same manner as if such location, 
alteration, or discontinuance of such highway had not been 
made, and shall give bond to the judge of probate in such 
form and amount as the court shall order. 

39. In all cases mentioned in section one of this act 
(thirty-seven of this chapter) the tenant in possession 
may apply for a jury, as is now provided by law in other 
cases, to revise the judgment of the county commissioners 
in the assessment of damages within one year from the 
adoption of the order of assessment by the commission- 
ers ; and if such tenant shall fail to so apply within the 
first six months of the year so limited, then the trustee or 
trustees, appointed under section two (preceding section) 
of this act, ma}', if they shall see fit, apply for such jury. 

40. The provisions of this act (sections thirty-seven to 
forty-one, inclusive, of this chapter) shall be applicable to 
all cases of the exercise of the right of eminent domain, 
in which provision is made that the damages sustained by 
a land-owner shall be assessed in the manner provided in 
the laying out of highways ; but the limitation as to the 
time within which proceedings to recover damages shall 
be commenced, shall be the same as now provided by law 
in the various cases of the exercise of the right of eminent 
domain ; and the right of the trustee or trustees, named in 



200 TOWN AND PARISH OFFICER. 

this act, to petition in any proceeding to recover damage 
shall not accrue until the tenant in possession of the estate 
shall have neglected so to petition for one-half the period 
so limited in any case. 

41. This act shall apply to pending cases whenever the 
tenant in possession of the property is a party to any pro- 
ceeding to recover damages, and where no assessment of 
damages has been made ; and the proceedings may be 
amended, if necessary, on proper terms to confirm trusts ; 
and the trustee or trustees named in this act may, in such 
cases, be appointed, as though proceedings have already 
been taken. 1 

42. A party aggrieved by the doings of the commis- 
sioners in the estimation of his damages, occasioned either 
by the laying out, locating anew, altering or discontinu- 
ing a highway, or by any specific repairs ordered by the 
commissioners, or in the sum awarded him as indemnity 
therefor, may have a jury to determine the matter of his 
complaint upon written application to the commissioners ; 
unless he agrees with the parties adversely interested to 
have the same determined by a committee, to be appointed 
under the direction of the commissioners. 2 

43. As to who may be " a party aggrieved," it has been decided 
that a town in which a highway is laid out may be one ; 3 and a per- 
son having only a possessory title of the land over which the high- 
way is located. 4 

44. The county commissioners having estimated the damages, if 
either party shall be dissatisfied and apply for a jury, they must 
grant it : their duty here is merely ministerial ; they are without dis- 
cretion, and if they refuse the application of the party, the supreme 
court will issue a mandate commanding them to grant the proper 
process for a jury in such a case. 5 

45. Applications for a jury to revise the judgment of 
the commissioners in the assessment of damages merely, 

1 Stats. 1875, ch. 117, §§ 1-5. * Trustees of the State Lunatic 

2 Stats. 1870, ch. 76. See forego- Hospital v. County of Worcester, 1 
ing sections 19, 24, 25. Met. 437. 

3 Lanesborough v. County Com- 5 Carpenter v. County Commis- 
missioners of Berkshire, 22 Pick, sioners of Bristol, 21 Pick. 258. 
278; Westport v. County Commis- 
sioners, 9 Allen, 204. 



LAYING OUT, ETC., OP HIGHWAYS. 201 

or in the award of indemnity, may be made at any time 
within one year from the time of the adoption of the order ; 
or, if within that time a suit shall be instituted wherein the 
legal effect of the proceedings of the commissioners in lay- 
ing out, locating anew, altering, or discontinuing, a high- 
way, is drawn in question, such application may be made 
at any time within one year after the final determination 
of the suit. 

46. If two or more persons apply at the same time for 
joint or several damages or indemnity, they may join in 
the same petition to the commissioners ; and if several 
applications are pending at the same time before the com- 
missioners for a jury to determine any matter relating to 
the laying out, alteration, or discontinuance, of a high- 
way, or the assessment of damages or indemnity, they 
shall cause all such applications to be considered and de- 
termined by the same jury ; and the costs shall be taxed 
either jointly or severally, as the court to which the verdict 
may be returned shall determine to be equitable. 1 

47. In Lanesborough v. County Commissioners of Berkshire, 2 
Chief -Justice Shaw said : " It is a matter of convenience and econ- 
omy, that several cases upon the same general subject, shall be deter- 
mined at once. But if one of the applicants obtains a verdict for his 
several damages and for his own use, there seems to be no reason 
why the controversy should not be considered as terminated in regard 
to him, because the jury in another and distinct case do not agree. 
If the question were solely upon the subject of alterations, two or 
more cases might perhaps be connected, that one could not properly 
be determined without including another. But where the verdict is 
for several damages, the court are of opinion that where there is a 
verdk-t in favor of one, it ought to be received and accepted pro tanto, 
and that the party who thus obtains a verdict for damages, is entitled 
to the benefit of it, although the jury do not agree as to other sub- 
jects committed to them at the same time." 

48. No jury shall be ordered, nor committee appointed, 
until the petitioners give recognizance to the county for the 
payment of all the costs and expenses which may arise in 
case the jury or committee shall not alter such highway, 

i Gen. Stats, ch. 43, §§ 22, 23. 2 22 Pick. 278. 



202 TOWN AND PARISH OFFICER. 

nor increase the damages or indemnity allowed by the 
commissioners. 

49. No petition for a jury shall abate or be defeated by 
the death of the petitioner ; but the executor or adminis- 
trator, or the heirs or devisees if they shall be the persons 
interested, may appear and prosecute such petition, or 
present a new petition, in the same manner and with the 
same effect as the original party might have done. 

50. If, upon the death of one or more of several peti- 
tioners for a jury, the executors or administrators, heirs or 
devisees, of such petitioners, after due notice that such 
petition is pending, neglect to appear or to prosecute, the 
surviving petitioners may proceed in the same manner as 
if they only had made the application. 

51. The warrant for a jury shall be directed to the sheriff 
of the county or his deputy, who is disinterested, or to a 
coroner, as the commissioners shall order, requiring him to 
summon a jury of twelve men to hear and determine the 
matter of complaint set forth in the petition, and to decide 
all such matters as shall legally come before them on the 
hearing. 

52. The officer who receives the warrant shall in writing 
require of the selectmen of the three nearest towns not 
interested in the question, if there be so many in the 
county, to return a number of jurors, not less than two nor 
more than six from any one town unless in case of neces- 
sity ; and the jurors shall be drawn, summoned, and 
returned, as in other cases, except that the jurors need not 
be summoned more than twenty-four hours before the time 
appointed for their attendance. 1 

In Wyman v. Lexington and West Cambridge Railroad Company, 2 
Judge Dewey said that " We are of opinion that the three nearest 
towns from which a jury is to be summoned, are the three towns 
nearest to that in which the land is situate, and exclusive of such 
town. A jury summoned in part from the town in which the land 
lies that is the subject of damages, would therefore be irregularly 
summoned, and if seasonably objected to, their verdict would be set 
aside for that cause/' 

1 Gen. Stats, ch. 43, §§ 24-28. 2 13 Metcalf, 316. 



LAYING OUT, ETC., OP HIGHWAYS. 203 

53. If a person so summoned as a juror fails to attend 
•without sufficient cause, he shall pay a fine not exceeding 
ten dollars, at the discretion of the court to which the ver- 
dict is returned, to be paid into the count} 7 treasury. 

54. If by reason of challenges or otherwise there is not 
a full jury of the persons summoned, the officer who sum- 
moned the jury, or in his absence the officer attending the 
jury, shall return some suitable person to supply the 
deficiency. 

do. The jurors shall be sworn to make a just and true 
appraisement of the damages sustained by the complainant, 
or of the indemnity to which he is entitled, and well and 
truly to try all such other matters as shall be lawfully sub- 
mitted to them under the complaint, and to give a true 
verdict therein, according to law and the evidence given 
them ; but when no estimate of damages or indemnity is 
required to be made, that part of the oath shall be omitted. 

56. The commissioners, when they issue their warrant 
for a jury, may at the request of either party appoint some 
suitable person to preside at the trial, in which case the 
jury may be attended by a deputy- sheriff ; but if no per- 
son is appointed, the sheriff of such county shall preside ; 
or, when the sheriff is interested or unable to attend, a coro- 
ner of the county shall preside. 1 

57. The person presiding at the trial shall keep order 
therein, and administer the oath to the jurors and witnesses ; 
shall decide all questions of law arising on the trial which 
would be proper for the decision of a judge ; shall direct 
the jury upon any question of law, when requested by 
either party ; and shall when requested certify to the court, 
with the verdict, the substance of any decision or direc- 
tion by him given. 2 

58. When a petition for a jury is presented, the com- 
missioners shall, on behalf of the county, take notice of 
the same ; and may in behalf of the count} r agree with the 
petitioners to substitute a committee in the place of a jury, 
as before provided. They shall, when they think it neces- 

i Gen. Stats, eh. 43, §§ 29-32. 2 G en . stats, ch. 43, § 33. 



204 TOWN AND PARISH OFFICER. 

sary, appoint some suitable person to attend upon the jury 
or the committee, as an agent for the county, who shall be 
allowed therefor three dollars a day and ten cents a mile 
travel. 

59. The officer by whom a jury is summoned shall give 
seasonable notice of the time and place of their meeting to 
the person appointed to preside at the trial, and also to the 
person appointed agent for the count} T , if such appointments 
have been made. When a committee is substituted for a 
jury, the notice to the agent shall be given by the person 
first named on the committee. 

60. The officer shall receive for summoning the jurors 
four cents a mile for all necessary travel, and one dollar 
and fifty cents for each day he attends upon them. He 
shall certify to the court his own travel and attendance, 
and also that of each juror. 

61. The jury shall view the premises when they think 
proper, or upon the request of either party, and shall hear 
and examine all legal evidence laid before them, with the 
observations of the parties or their counsel thereon. All 
the jurors shall sign the verdict which may be agreed upon, 
which shall be enclosed in a sealed wrapper, with an in- 
dorsement thereon expressing what it contains, and deliv- 
ered so indorsed to the officer having charge of the jury. 

62. If the interest or right of a complainant in or to 
the real estate alleged to be damaged by the laying out, 
locating anew, altering, discontinuing, or making specific 
repairs upon, a highway, is drawn in question on such 
hearing, the jury may hear and determine the question of 
interest or right so far only as respects the damages of such 
complainant. 

63. A jury assessing damages may extend the time 
allowed by the commissioners for the owner of the land to 
take off the timber, wood, trees, or other property. If he 
neglects to take off the same within the extended time, he 
shall be deemed to have relinquished his claim thereto for 
the benefit of the town, as before provided. 

64. When a jury is ordered, they shall be summoned and 



LAYING OUT, ETC., OF HIGHWAYS. 205 

give their verdict within three months next after the date 
of the order. The verdict shall be returned to the next 
term of the superior court to be held for the same county, 
and the court shall receive it, and adjudicate thereon, and 
may set it aside for good cause. If the matter is deter- 
mined by a committee, the report of the committee shall be 
made within three months after their appointment, shall be 
returned to the next term of the court held after making 
the same ; and like proceedings shall be had thereon as 
upon the return of a verdict. 

65. If the jury do not agree upon a verdict, or if the 
proceedings are set aside upon a writ of certiorari, the 
complainant shall be entitled to a new jury from time to 
time until a verdict is rendered and established ; but he 
may at any stage of the proceedings, upon such terms as 
the court shall order, waive his right to a trial by jury, and 
accept the damages assessed by the commissioners. 

66. The clerk of the court shall certify such verdict or 
report, with the adjudication of the court thereon, to the 
commissioners at their next meeting after the adjudication 
shall be had : and if the verdict or report has been set 
aside, the commissioners on application therefor, shall 
order a new jury, or the parties may agree upon a new 
committee ; and thereupon like proceedings shall be had as 
are hereinbefore provided. 

67. The verdict or report returned to the court as before 
provided, and accepted and recorded, shall be conclusive 
upon the parties. 

68. If the jury or committee do not alter the highway, 
nor increase the amount allowed by the commissioners, as 
damages or indemnity, the costs incurred by reason of the 
application for the jury or committee shall be paid by the 
persons who recognize for the payment of costs ; other- 
wise all such costs shall be paid from the county treasury. 

69. If a question arises with regard to the taxation of 
costs, in the proceedings and hearing before a jury or com- 
mittee, it shall be determined by the court to which the 
verdict or report is returned ; and the court may also 



206 TOWN AND PARISH OFFICER. 

determine the compensation of the committee and of the 
person who presides at the trial. 

70. When the commissioners order a jury, or a com- 
mittee is agreed upon, to consider and determine with re- 
gard to the laying out, alteration, or discontinuance, of a 
highway, or specific repairs upon an existing highway, 
the highway so laid out or altered shall not be opened or 
worked, nor shall the highway so discontinued, or upon 
which specific repairs are ordered, be shut up, until after 
the meeting of the commissioners at which the verdict of 
the jury or report of the committee, with the adjudication 
of the court thereon, is certified to them as before directed ; 
and thereupon the commissioners may allow such further 
time as they think reasonable for making and completing 
such highway, and for the removal of the timber, wood, 
trees, or other property, if any, from the premises. 

71. When a highway is finally laid out, and established, 
altered, or discontinued, or specific repairs are ordered, 
on an existing highway, all the expenses of the proceed- 
ing, and also all damages allowed therefor, and all sums 
awarded as indemnity, shall be paid by order of the com- 
missioners, by the county, except as herein otherwise 
provided. 

72. If a highway is not finally laid out and established, 
located anew, altered, or discontinued, nor specific repairs 
ordered, all said expenses shall be paid by the persons who 
have recognized therefor. If they refuse or neglect to pay 
such expenses, or to pay the costs incurred by reason of the 
application for a jury or committee, when required by the 
commissioners, such expenses or costs shall be ordered by 
the commissioners to be paid from the county treasury ; 
and thereupon the commissioners, after giving due notice 
to the persons who so recognized, shall issue a warrant 
against them or some of them (unless sufficient cause is 
shown to the contrary) for the amount ordered to be paid 
by them, with the further costs of the notice and warrant, 
and the money shall be collected as in other cases, and 
paid into the county treasury. 



LAYING OUT, ETC., OF HIGHWAYS. 207 

73. After a highway has been established by the com- 
missioners, if a town whose duty it is to make such high- 
way, or a part thereof, shall not make and complete the 
same within the time and in the manner prescribed, and to 
the acceptance of the commissioners, they shall, as soon as 
may be thereafter, cause such highway to be completed as 
aforesaid ; and at their next meeting they shall direct the 
expenses and charges of completing the same to be paid 
out of the county treasury, and shall order notice thereof 
to be given to each town that is delinquent, stating the 
proportions which they are respectively required to pay. 

74. If a delinquent town does not pay its proportion of 
the expenses and charges before the next regular meeting 
of the commissioners, with interest thereon at the rate of 
ten per cent a year from the time the same is paid from the 
county treasury, the commissioners, unless sufficient cause 
is shown to the contrary, shall issue a warrant against such 
town for the sum it was ordered to pay, with the interest, 
and the further costs of such notice and warrant ; and the 
same shall be collected as in other like cases, and paid 
into the county treasury. 

75. When a highway is laid out or altered, the commis- 
sioners, after the same is completed, may order the whole 
or part of the expenses incurred by any town in making or 
altering the same, to be paid out of the county treasury. 1 

The actual cost, and not the estimated expense, of making and 
altering highways, is to be divided between towns and the county, 
by the county commissioners, as they shall decide to be just and 
reasonable. 2 

76. Upon notice to the commissioners that the part of 
such highway lying within the limits of a town has been 
completed according to their directions for making the 
same, they shall view and carefully examine the same 
throughout ; and if they find such highway well made, they 
shall so certify to the county treasurer, who shall thereupon 
pay to such town the sum so allowed. 

1 Gen. Stats, ch. 43, §§ 34-51. missioners of Berkshire, 6 Met. 

2 Lanesborough v. County Com- 329. 



208 TOWN AND PARISH OFFICER. 

77. When there shall be several parties, having several 
estates at the same time, in land or buildings, other than 
and different from the estates and interests for which pro- 
vision is made in section seventeen (section thirty-five 
above) , and the land or buildings are taken or otherwise 
damaged, in whole or in part, b}^ the laying out, locating 
anew, altering, or discontinuing, of a highway, or making 
specific repairs thereon, and one of such parties, by peti- 
tion as provided in this chapter, applies for a jury to ascer- 
tain his damages in the premises, all the other parties so 
interested may become parties to the proceedings under such 
petition, and the damages of all of them may be determined 
by the same jury, in the manner provided in the five follow- 
ing sections. 1 

Under the operation of this section, a tenant in common of land 
over which the county commissioners have laid out a highway, may 
apply for a jury to assess his damages, without the joinder of his co- 
tenants. 2 

78. Upon such application of a party thus interested, 
the commissioners shall order the petitioner to give notice 
thereof to all the other parties interested, by serving each 
of them, fourteen days at least before their next regular 
meeting, with an attested copy of such petition and the 
order thereon, that the other parties may, if they see cause, 
appear at the next meeting, and become parties to the 
proceedings under the petition ; and at the next meeting a 
jury shall be ordered as before provided in this chapter, 
who shall, under the direction of the person presiding at 
the trial, proceed to hear all the persons who have become 
parties to the proceedings. 

79. If on such hearing the jury find any of the parties 
entitled to damages, they shall assess the same in the fol- 
lowing manner, to wit : they shall first find and set forth in 
their verdict the total amount of the damages sustained by 
the owners of such land and buildings, estimating the same 
as an entire estate and as if the same were the sole property 

i Gen. Stats, ch. 43, §§ 52, 53. 

2 Dwight v. County Commissioners of Hampden, 7 Cush. 533. 



LAYING OUT, ETC., OF HIGHWAYS. 209 

of one owner in fee simple ; and they shall then apportion 
the total amount of damages among the several parties 
whom they find to be entitled, in proportion to their several 
interests and claims and to the damages sustained by them 
respectively, and set forth such apportionment in their 
verdict ; and if they find any one or more of said parties 
not to have sustained damage, they shall set forth in their 
verdict that they award no damages to such party. 

80. The verdict, if accepted, shall be conclusive upon all 
parties interested who shall either have had notice as afore- 
said, or by consent have become parties to the proceedings. 

81. Each part}^ recovering damages shall recover his 
several costs ; and each party not recovering damages shall 
be liable for costs to the town or other corporation of which 
he shall have claimed damages, in like manner as if the 
proceedings were had under his several petition ; but if a 
party shall fourteen days before the trial give notice in 
writing to the town or other corporation that may be liable 
for damages, that he relinquishes all claim for damages, 
and shall also before the trial file in the case a relinquish- 
ment of such claim, he shall not be liable for costs in the 
case. 

82. If a person, having notice as aforesaid, neglects to 
appear and become a party to the proceedings in court, he 
shall be for ever barred from making an application for 
damages. 1 

83. The lands now holden, and which may hereafter be holden, by 
the trustees of any state lunatic hospital, in trust for the common- 
wealth, for the use of the institution of which they are trustees, shall 
not be taken for any street, highway, or railroad, without leave of the 
legislature specially obtained. 2 

84. The county commissioners may, in certain cases, lay out a turn- 
pike road as a common highway. In such cases 3 

The commissioners upon such taking may allow such dam- 
ages as they think reasonable to the corporation, to be paid, 
out of the county treasury, and they may order a part of 
such damages, not exceeding one-third thereof, to be re~ 

1 Gen. Stats, ch. 43, §§ 54-58. 3 Gen. Stats, ch. 62, § 14. 

2 Stats. 1862, ch. 223, § 2. 

14 



210 TOWN AND PARISH OFFICER. 

funded to the count}^ treasury by the cities and towns 
through which the road passes, at such times as they direct. 
In apportioning the proportions to be paid by each, they 
shall have regard to the length of way in each, and the 
advantages to be derived to it. 

85. If a city or town refuses or neglects to pay its pro- 
portion, the same proceedings may be had to enforce the 
payment as are provided in case of expenses of making 
highways by the commissioners where cities or towns neg- 
lect to make the same. 

86 . In the assessment of damages there shall be allowed 
to persons injured such damages only as they would be 
entitled to beyond the damages they would have sustained 
by the continuance of the turnpike road, taking into con- 
sideration any advantage which may accrue in consequence 
of making the same a highway. 1 

i Gen. Stats, ch. 62, § 15. 



LAYING OUT, ETC., TOWN AND PRIVATE WAYS. 211 



CHAPTER XXIII. 

LAYING OUT AND DISCONTINUANCE OF TOWN AND 
PRIVATE WAYS. 

1. The selectmen of the several towns may lay out or 
alter town ways for the use of their respective towns, and 
private ways for the use of one or more of the inhabitants 
thereof; or may order specific repairs to be made upon 
such ways. 1 

2. " It is quite obvious, that the distinctive character of a road, as 
a town way or a public highway, must to some extent be indicated by 
the manner of its creation, or the power which gives it a legal exist- 
ence. The county commissioners have not only authority to lay out 
highways from town to town, that is, passing through various towns, 
but also highways, the termini of which are exclusively within the 
same town. Hence, to some extent, local roads may be either town 
ways or public highways. So, also, a town road may be a road of 
great public travel, from its connection with other roads. The only 
criterion, therefore, for distinguishing between these different species 
of roads, is to ascertain whether the proceedings for their location 
originated with the selectmen, or with the county commissioners. If 
with the former, they must be town ways, as the jurisdiction of the 
selectmen is confined to such ways." 2 

3. A majority of the board of selectmen is sufficient to lay out a 
town way. 3 

4. And they have authority to lay out a town way wholly upon 
land of citizens, against their consent, entering their land from a 
highway and returning to it at about the same place where it enters, 
and leading to no other way or landing-place, and capable of being 
used for no purposes of business or duty, or of access to the land of 
any other person ; and which is laid out with the design to provide 
access not for the town merely, but for the public, to points or places 
in the lands of those citizens esteemed as pleasing natural scenery. 4 

i Gen. Stats, ch. 43, § 59. 3 j on es v. Andover, 9 Pick. 145. 

2 Monterey v. County Commission- 4 Higginson v. Nahant, 11 Allen, 
ers of Berkshire, 7 Cush. 394 ; Black- 530. 
stone v. County Commissioners, 108 
Mass. 68. 



212 TOWN AND PARISH OFFICER. 

5. But it seems they have no authority to lay out a town way to be 
used only during a portion of the year. 1 Nor can they lay out a 
landing-place on a town way between high-water mark and the chan- 
nel of a navigable river. 2 

6. A town, at a meeting regularly called for the purpose, 
may discontinue any town or private way. 

7. No town way or private way shall be laid out or 
altered unless, seven days at least previously thereto, a 
written notice of the intention of the selectmen of the town 
to lay out or alter the same is left by them, or by their 
order, at the usual place of abode of the owners of the land 
over which such way is proposed to be laid out or altered, 
or unless such notice is delivered to such owner in person 
or to his tenant or authorized agent. If the owner has no 
such place of abode in the town, and no tenant or author- 
ized agent therein known to the selectmen, or if, being a 
resident in the town, he is not known as such to the 
selectmen, such notice shall be posted up in some public 
place in the town seven days at least before the laying out 
of such way. 

8. If damage is sustained by any person in his property 
by the laying out, alteration, or discontinuance, of a town 
or private way, or by specific repairs which may be ordered 
thereon, he shall receive such compensation as the select- 
men shall determine, to be assessed and awarded in the 
manner provided for the assessment and award of damages 
by county commissioners in laying out highwa} T s ; which 
damages shall be paid by the town if it is a town way, but 
if a private way, then by the person for whose use it is so 
laid out or altered, or for whose benefit specific repairs are 
ordered, or on whose application it is discontinued, unless 
the selectmen deem it reasonable that part of the damage 
shall be paid by the town and the residue by said persons, 
in which case they shall make an order specifying the sums 
to be paid by each. 3 

9. The provision in the foregoing section that the damages shall 
be assessed and awarded " in the manner provided for the assessment 

1 Holcomb v. Moore, 4 Allen, 529. 3 Gen. Stats, ch. 43, §§ 60-62. 

2 Kean v. Stetson, 5 Pick. 492. See previous chapter. 



LAYING OUT, ETC., TOWN AND PRIVATE WAYS. 213 

and award of damages by county commissioners in laying out high- 
ways," " has," said Hoar, J., in a recent case, " reference to the nature 
of the damages, the deductions to be made for benefits, and the dis- 
tribution of damages among different parties in interest." i 

10. The selectmen of a town may estimate the damages caused to 
the owner of land by the laying out of a town way at the same meet- 
ing at which the way is located. 1 

11. The damages so awarded shall not be paid until the 
land is entered upon and possession taken for the purpose 
of constructing such way or alteration, or until the specific 
repairs which have been ordered are commenced. And if 
possession is not taken, or if the specific repairs are not 
made, the party, instead of the damages awarded to him, 
shall be entitled to indemnity to be assessed by the select- 
men in the same manner that indemnity is awarded by 
county commissioners in like cases. 

12. If there are separate or different interests in lands or 
buildings which are so taken or injured, of the character 
and description mentioned in sections seventeen and 
eighteen, 2 the damages shall be assessed by the selectmen 
in the mode therein provided for an assessment by the com- 
missioners. 

13. Except as is hereinafter provided, no town way or 
private way laid out or altered by the selectmen, shall be 
established until such laying out or alteration, with the 
boundaries and admeasurements of the way, is reported to 
the town, and accepted and allowed at some public meet- 
ing of the inhabitants regularly warned and notified there- 
for, nor unless such laj-ing out or alteration, with the 
boundaries and admeasurements, is filed in the office of the 
town clerk seven days at least before such meeting. 3 

Reference to a plan containing the admeasurements and boundaries 
is not sufficient unless the plan be filed ; and neglect on the part of 
the selectmen to file their report seven days before the meeting ren- 
ders the alteration invalid, though no person applied to the town 
clerk during the seven days to inspect the report. 4 

* Higginson v. Nahant, 11 Allen, 3 Gen. Stats, ch. 43, §§ 63-65. 

530. 4 Jeffries v. Swampscott, 105 Mass. 

2 See sections 35 and 36 previous 535. 
chapter. 



214 TOWN AND PARISH OFFICER. 

14. But a vote of a town that the selectmen shall lay out a particu- 
lar town way, is unauthorized and improper, it being the intention of 
the statute that the selectmen shall exercise their own discretion upon 
the subject. 1 

15. When the location or alteration of a private way is 
desired in a town for the use of one or more persons, not 
being inhabitants thereof, or when the location or altera- 
tion of a private way lying partly in one town and partly in 
another is desired, the county commissioners may cause 
such way to be located or altered, proceeding therein as 
is provided where the selectmen refuse to lay out a private 
way. 

16. If the selectmen of a town unreasonably refuse or 
neglect to lay out or alter a town way or private wajr, when 
requested in writing by one or more of the inhabitants 
thereof, the commissioners, on the petition in writing of a 
person aggrieved presented at any regular meeting within 
one year, may cause such way to be laid out or altered, 
ascertain the place and course of the way, and estimate the 
damages sustained by any person by reason thereof. 
Such damages with all costs of the proceedings shall be 
paid by the town, if it is a town way. If it is a private 
way, the damages and costs, or such part thereof as the 
commissioners judge reasonable, shall be paid by the per- 
sons for whose use it is laid out or altered, and the residue, 
if any, by the town. 2 

17. But before the commissioners have power to lay out such town 
way they must determine that the selectmen of the town in which 
the way is located had unreasonably neglected or refused to lay out 
the same; and their record should distinctly state such adjudication. 3 

18. The omission of selectmen to make a written report to the 
town of their alteration of a town way, on a written petition for an 
alteration, is such a refusal or neglect to alter it as gives jurisdiction 
of the matter to the county commissioners. 4 

19. But when they refuse to lay out a way, and application is 
thereupon made to the county commissioners to lay it out, they have 

1 Kean v. Stetson, 5 Pick. 492. 4 New Marlboro' v. County Com- 

2 Gen. Stats, ch. 43, §§ 66, 67. missioners, 9 Met. 423. 
8 Belchertown v. County Commis- 
sioners, 11 Cush. 189. 



LAYING OUT, ETC., TOWN AND PRIVATE WAYS. 215 

jurisdiction of such application, and may proceed thereon, although 
the selectmen, in the petition to them, were requested to discontinue 
an old way (which they had no authority to do) as well as to lay out 
a new one. 1 

20. And it is a question exclusively within the discretion of the 
county commissioners to decide whether a town way, for the laying 
out of which application is made to them on the refusal of the select- 
men to lay it out, is for the use of the town within which it is 
situated. 2 

21. If a town unreasonably refuses or delays to approve 
and allow a town way or private way laid out or altered by 
the selectmen, and to put the same on record, any person 
aggrieved thereby may, within one year thereafter, apply 
by petition in writing to the commissioners ; and the com- 
missioners, unless sufficient cause is shown against such 
application, may approve and allow of the way as laid out 
or altered by the selectmen, and direct the laying out or 
alteration and acceptance to be recorded by the clerk of 
such town, which shall have the like effect as if accepted 
by the town and recorded. 

22. If a town in which a town way or private way is 
laid out, altered, or approved, in pursuance of the three 
preceding sections, 3 shall not make and complete the same 
in the manner prescribed by the commissioners, and to 
their acceptance, within six months from the time when 
the same is laid out or approved, or within the time directed 
by the commissioners, they shall, as soon as may be there- 
after, cause such way to be completed, and at the next 
meeting shall direct the expenses and charges of completing 
the same to be paid out of the county treasury, and order 
notice thereof to be given to the delinquent town, stating 
the amount of such expenses and charges. If the town 
does not before the next regular meeting of the commis- 
sioners pay the same, with interest thereon at the rate of 
ten per cent from the time when the same was paid by the 
county treasurer,- they [shall] cause the same with all 

1 Brown v. County Commissioners, 2 Monterey v. County Commission- 
12 Met. 208. ers, 7 Cush. 394. 

3 See sections 15, 16, 21, above. 



216 TOWN AND PARISH OFFICER. 

further costs to be collected in the manner prescribed in 
section fifty. 1 

23. Upon the application in writing, of any person ag- 
grieved by the refusal of a town to discontinue a town way 
or private way, the commissioners may order such way to 
be discontinued. 

24. When a town way has been laid out or altered by 
the commissioners it shall not within two years thereafter 
be discontinued or altered by the town ; and when such 
way has been discontinued by the commissioners, the town 
shall not within two years thereafter lay out the same 
again. 

25. When an application is made to the commissioners 
in consequence of the refusal or neglect of selectmen to lay 
out or alter a private or town way, or in consequence of the 
refusal or neglect of the town to accept and allow such way 
when laid out or altered by the selectmen, or when such 
application is made for the discontinuance of a private or 
town way, the commissioners shall cause a like recogni- 
zance to be given to the county as is directed in this 
chapter 2 with regard to applications for highways ; and 
like proceedings may be had on such recognizance. They 
shall also cause notice to be given, before they proceed to 
view, or to hear the parties, as in the case of highways. 2 

26. A person aggrieved by the laj-ing out, or by the 
alteration or discontinuance, of a town or private way, or 
by an order for specific repairs, or by the assessment of 
his damages, or compensation by way of indemnity, ma}' 
have the matter of his complaint determined by a jury, 
which may be applied for at an} T time within one year after 
such laying out, alteration, order for repairs, discontinu- 
ance, or assessment of indemnity ; or if a suit is instituted 
within one year wherein the legal effect of the proceedings 
is drawn in question, such application for damages or in- 
demnity may be made at an}* time within one } T ear after the 
final determination of such suit. Upon such application, 
an order for a jury shall be made by the commissioners (or 

1 See section 69, ch. 23. 2 See preceding chapter. 



LAYING OUT, ETC., TOWN AND PRIVATE WAYS. 217 

by agreement of the parties the matter may be determined 
by a committee to be appointed by the commissioners) ; 
and the jury or committee shall have the same powers, and 
the proceedings in all respects shall be conducted in the 
same manner, as before provided in like case with respect 
to highways. 1 If the damages are increased or the way is 
altered, the damages and all charges shall be paid by the 
town ; otherwise the charges arising on such application 
shall be paid by the applicant or person recognizing as 
aforesaid. 2 

27. A town may be an aggrieved party; 3 but when the selectmen 
of such town, without its authority, apply for a jury to reduce dam- 
ages estimated by the county commissioners, upon the laying out of a 
town way, and a warrant is thereupon issued to an officer, requiring 
him to summon a jury to hear and determine the matter of complaint, 
and he performs the service so required of him, he may maintain an 
action against the selectmen to recover therefor and for his disburse- 
ments. 4 

28. The aggrieved party's application for a jury must be made to 
the county commissioners at a regular term, or at an adjourned meet- 
ing of the board, held within one year from the time of the laying 
out of the town way. 5 And his petition should contain a particular 
description of the land, and the situation of the same in relation to 
the town way alleged to have been laid out or discontinued, and also 
an allegation of the injury sustained. 6 

29. Highways and town wa} T s may be laid out, constructed, 
altered, widened, graded or discontinued under the provi- 
sions of chapter forty-three of the General Statutes, and 
any general laws in amendment thereof, notwithstanding the 
acceptance by any town of any act authorizing the assess- 
ment upon estates benefited of a portion of the cost of such 
highwa} T s or town ways, and every highway or town way 
hereafter laid out shall be deemed to be laid out under the 
provisions of said chapter and amendments, unless the 
order laying out the same expressly declares the same to 
be laid out under the provisions of law authorizing the 
assessment of betterments. 7 

1 See preceding chapter. 5 Eaton v. Framingham, 6 Cush. 

2 Gen. Stats, eh. 43, §§ 68-73. 245. 

8 See section 38, ch. 22. 6 p eiT y v. Sherburn, 11 Cush. 388. 

4 Baker v. Thayer, 3 Met. 312. 7 Stats. 1874, ch. 275. 



218 TOWN AND PARISH OFFICER. 

30. When a town or private way is laid out or altered 
by the selectmen or commissioners, they shall in their re- 
port or return thereof specify the manner in which such 
way, location, or alteration, shall be completed, and trans- 
mit to the clerk a description of the location and bounds 
thereof, which shall, within ten days, be recorded by him 
in a book of records kept for that purpose ; and they shall 
allow the owner of the land through which the way may 
pass, a reasonable time to take off his trees, fences, and 
other property, which may obstruct the building of such 
way. If he neglects to remove the same within the time 
allowed, he shall be deemed to have relinquished his right 
thereto for the benefit of the town, if the way be a town 
wa}^ : and if it be a private way, for the benefit of such 
person as the selectmen or commissioners shall determine. 

31. If a jury is ordered to assess the damages done by 
the location or alteration of such way, they may extend the 
time for the owner of the land to remove his trees, fences, 
and other property ; and if he neglects to remove the same 
within such extended time, he shall be deemed to have re- 
linquished his claim thereto. 

32. No town shall contest the legality of a way laid out 
by such town and accepted and recorded as provided in 
this chapter. 1 

33. The mayor and aldermen of any city, and the select- 
men of any town, may make such rules and regulations in 
relation to the passage of carriages, wagons, carts, trucks, 
sleds, sleighs, horse-cars, or other vehicles, or to the use 
of sleds or other vehicles for coasting, in and through the 
streets or public ways of such city or town, as they shall 
deem necessary for the public safety or convenience, with 
penalties for violation thereof, not exceeding twenty dollars 
for one offence. 2 

34. No highway, town way, street, turnpike, canal, rail- 
road or street railway, shall be laid out or constructed in, 
upon, through or over any public common or public park 
which has been dedicated to the use of the public or appro- 

i Gen. Stats, ch. 43, §§ 74-76. 2 stats. 1875, ch. 136. 



LAYING OUT, ETC., TOWN AND PRIVATE WAYS. 219 

priated to such use without interruption for the period of 
twenty years or longer, nor shall any part of any such public 
common or public park be taken for widening or altering 
any highway, town way or street previously located or con- 
structed, except after public notice, to be given in the same 
manner as provided in cases of applications for the location 
and alteration of highways, in which notice shall be specifi- 
cally set forth, the extent and limits of the portion of the 
public common or public park proposed to be taken, and 
unless the consent of the inhabitants of the city or town in 
which the same is situated is first obtained. Such consent 
shall be expressed by vote of the inhabitants whenever as 
many as ten legal voters file a request in writing to that 
effect, with the selectmen of the town or the mayor and 
aldermen of the city, within thirty days after the publica- 
tion of the notice ; in the absence of such request consent 
shall be presumed to be granted. 1 

35. Whenever any person owning, erecting or maintain- 
ing a water-mill, or a dam to raise water for working such 
mill, upon or across any stream not navigable, under chap- 
ter one hundred and forty-nine of the General Statutes, 
desires to raise, erect or maintain a dam, at such height, or 
in such manner as to overflow or otherwise injure an ex- 
isting public way, he may apply by petition to the county 
commissioners of the county in which such way is located, 
setting forth the height at which it is desired to maintain 
such dam, and the ways, which it is expected may be injured 
thereb}% and asking for the alteration, change of grade, or 
specific repairs of such ways. Said commissioners, after a 
hearing upon any such petition, md.j order such alteration, 
repairs or change of grade of such wa} 7 s, as will in their 
judgment, enable the petitioner to raise, erect and main- 
tain such clam without overflowing or otherwise injuring 
such waj^s, and they may give written direction and au- 
thority to such petitioner to make, at his own expense such 
alterations, changes of grade and repairs, within a reason- 
able time. They shall record all such orders and cause 

1 Stats. 1875, ch. 163. 



220 TOWN AND PARISH OFFICER. 

certified copies of the same to be filed and recorded in the 
office of the town clerk of each town in which such altera- 
tions, changes of grade or repairs are ordered. 

36. Notice of the hearing upon any such petition shall be 
given to the towns in which the ways are situated, and to the 
owners or occupants of lands affected thereby, in the same 
manner as notice of the laying out of highways is given : 
the commissioners shall assess and order to be paid by the 
petitioner all damages sustained b}^ any person or corpora- 
tion (or town or city *) by reason of the alterations, changes 
of grade or repairs ordered by them, and any person or 
corporation (or town or city 1 ) aggrieved by such assess- 
ment, may on application within one year from the entry 
of such order, have the damages assessed by a jury, in the 
manner provided by law for the assessment of damages 
occasioned by the laying out or discontinuance of high- 
ways. 

37. The costs of all proceedings under this act (two pre- 
ceding and two following sections) shall be paid by the 
petitioners ; and they may be required by the county com- 
missioners to recognize with sufficient sureties for the pay- 
ment of the same. 

38. The order of the county commissioners, duly issued 
under this act, shall be deemed to authorize the petitioner 
to do all acts necessary to be done in compliance therewith ; 
and if it is shown that the petitioner has substantially com- 
plied with such order, no indictment shall be maintained 
for the flowage or injury by means of the dam of the ways 
mentioned in such order. 

39. Nothing in this act shall impair the right of any 
person or corporation to maintain any existing water-mill 
or dam. 2 

40. " The betterment act of 1871, ch. 382, § 1, does not repeal the 
provision of the highway act (Gen. Stats, ch. 43, § 16), but secures 
the landowner from being twice charged for the same benefit, by pro- 
viding that, in assessing betterments under the former, due allowance 
shall be made for any benefit set off under the latter. The benefit 
and advantage to be taken into consideration in the assessment 

i Acts, 1876, ch. 117. 2 Stats. 1873, ch. 144. 



LAYING OUT, ETC., TOWN AND PRIVATE WAYS. 221 

under the betterment act may include those shared by the estate in 
question with other estates in the vicinity, though not bounding on 
the same street, beyond the general advantage to all lands in the 
same city. The benefit to be deducted in estimating damages under 
the highway act is limited to the direct and special benefit to the 
estate in question, as distinguished from other estates not bounding 
on the same street." — Gray, C. J. 1 

41. " The benefits which may accrue to any estate from the laying 
out of a highway are of three kinds : 1. Those directly occasioned to 
an estate bounding upon the highway, and peculiar to the estate itself, 
as distinguished from other estates not bounding thereon. 2. Those 
shared by the estate in common with other estates in the neighbor- 
hood. 3. Those which extend to all estates in the same town or city. 

" Benefits of the first kind only can be allowed by way of set-off 
against the damages awarded to the owner under the highway act 
for taking part of the estate, and injuring it. Gen. Stats, ch. 43, § 16; 
Dickenson v. Fitchburg, 13 Gray, 546 ; Whitney v. Boston, 98 Mass. 
312; Allen v. Charlestown, 109 Mass. 243. 

" Benefits of the first kind, when no part of the estate is taken or 
injured by the laying-out of the highway, and of the second kind in 
all cases, are to be included in the benefit and advantage to be con- 
sidered in making an assessment under the betterment acts. Stats. 
1870, ch. 163, § 3 ; 1871, ch. 382, § 1. The increased value of the 
estate by reason of benefits of the third kind, being those which its 
owner receives in common with all other owners of lands in the same 
municipality, are not subjects of compensation from him to the pub- 
lic in any form of proceeding. Stat. 1871, ch. 382, § 1. 

" The bill of exceptions shows that part of the petitioner's land was 
taken for the highway, and his damages assessed by a committee duly 
appointed. He now offered to prove that in the estimate of those 
damages the peculiar benefits to his estate were deducted, and the 
amount of that deduction. 

" But the betterment act of 1870, ch. 163, § 3, under which the 
present case arose, enacts that in estimating, in accordance with its 
provisions, the benefit and advantage to any estate by the laying-out 
or alteration of a highway, 'due allowance shall be made for any 
benefit set off under the provisions of section sixteen of chapter forty- 
three of the General Statutes/ If the amount of the peculiar benefit 
thus set off had been permitted to be given in evidence, the jury must 
have been instructed not to include it in their verdict ; and the same 
result was reached more directly and quite as surely by wholly ex- 
cluding from their estimate all such benefits as could be so set off." — 
Gray, C. J. 2 

A valid agreement not to assess betterment cannot be made. 8 

1 Green v. Fall River, 113 Mass. 262. 

2 Upham v. Worcester, 113 Mass. 97. 

8 Boylston Market Association v. Boston, 113 Mass. 528. 



222 TOWN AND PARISH OFFICER. 



CHAPTER XXIV. 

BETTERMENT LAW. 

1. At any time within two years after any street, high- 
way or other way is laid out, altered, widened, graded, or 
discontinued, when in the opinion of the board of city or 
town officers authorized to lay out streets or ways respec- 
tively therein, any real estate, including that, a part of which 
may have been taken for such purpose, shall receive any 
benefit and advantage therefrom, be}<ond the general ad- 
vantages to all real estate in the city or town where the 
same is situated, such board may adjudge and determine 
the value of such benefit and advantage to any such estate, 
and may assess upon the same a proportional share of the 
expense of laying out, alteration, widening, grading, or 
discontinuance ; but in no case shall the assessment exceed 
one-half the amount of such adjudged benefit and ad- 
vantage, nor shall the same be made until the work of lay- 
ing out, altering, widening, and grading is completed or 
discontinuance made ; and in case of laying out a highway 
or town way by county commissioners, due allowance shall 
be made for any benefit set off under the provisions of sec- 
tion sixteen of chapter forty-three of the General Statutes. 

2. Any such assessment upon real estate which is in- 
valid by reason of any error or irregularity in the making 
thereof, and which has not been paid, or which has been 
recovered back, may be re-made by such board, to the 
amount for which the original assessment ought to have 
been made, and the same shall be a lien upon the estate, 
and be collected in the same manner as re-assessed taxes 
are. 

3. The expense to be assessed upon the estates as 
herein provided shall include all damages for land and 



BETTERMENT LAW. 223 

buildings taken ; and in estimating such damages all build- 
ings on the land, a part of which is taken, shall be included, 
and there shall be deducted therefrom the value of the 
materials removed, and of all buildings or parts of build- 
ings remaining thereon ; and the damages for land taken 
shall be fixed at the value thereof before such la} T ing out, 
alteration, or widening, and the damage so estimated shall 
be paid to the persons entitled thereto, in the same man- 
ner, and upon the same conditions as are provided by law 
in other cases of laying out, alteration, widening, grading, 
or discontinuance of streets and ways. 

4. If the owner of any building or materials on land, a 
part or the whole of which is taken for the purposes named 
in this act, after reasonable notice in writing from the 
board authorized to make assessments as aforesaid, shall 
refuse or neglect to take care of, or remove such buildings 
or materials, such board may take such care of the same as 
public safet} r , or the preservation thereof demands, or may 
remove such buildings or materials, either upon the ad- 
joining land of such owner, or otherwise ; or they may sell 
the same at public auction, after five daj's' public notice 
of such sale, and hold the proceeds of the sale for the 
benefit of such owner ; and the expense incurred by said 
board, or the value thereof to the owner, shall be allowed 
in reduction of the damages which said owner is entitled to 
recover. 

5. Any person owning real estate abutting on any street, 
highwa}', or other way, which may be laid out, altered, 
widened, graded, or discontinued, and liable to assessment 
under this act, may, at any time before the estimate of 
damages is made, give notice in writing to the board hav- 
ing authority to make the assessment, that he objects to 
the same, and elects to surrender his estate to the city or 
town where situated ; and if said board shall then adjudge 
that public convenience and necessity require the taking of 
such estate, for the improvements named, they may take 
the whole of such abutting estate, and shall thereupon 
estimate the value thereof, excluding the benefit or ad- 



224 TOWN AND PARISH OFFICER. 

vantage which has accrued from the laying out, alteration, 
widening, grading, or discontinuance, and such owner 
shall convey the estate to such cit}~ or town, which shall 
pay him therefor the value so estimated, and the same 
may be recovered by an action of contract ; and the city 
or town may sell any portion of said estate not needed for 
such improvements. 

6. All assessments made under this act shall constitute 
a lien upon the real estate so assessed, to be enforced in 
the same manner, with like charges for cost and interest, 
as provided by law for the collection of taxes ; and if the 
owner of the estate shall give notice to the board authorized 
to make the assessment at any time before demand is made 
upon him for payment thereof, that he desires to have the 
amount of such assessment apportioned, said board shall 
apportion the same into three equal parts, and certify such 
apportionment to the assessors of the city or town, and 
said assessors shall add one of said equal parts, with inter- 
est thereon from the date of the apportionment, to the 
annual tax of said estate for the three years next ensuing ; 
and all assessments laid upon real estate, for any of the 
causes mentioned in this act, which shall remain unpaid 
after the same become due or payable, shall draw interest 
from the time when the same became due or payable, until 
the time of payment thereof. 

7. Any party aggrieved by the doings of such board, 
may apply by petition to the superior court for the county 
in which the estate is situated (filed in term time, or in the 
clerk's office in vacation) 1 within one year after the pass- 
age of the order or proceedings upon which the application 
is founded ; and after due notice to the city or town against 
which the petition is filed, a trial shall be had at the bar of 
the court in the same manner in which other civil causes 
are there tried by the jury, and if either party request it, 
the jury shall view the place in question. 

8. If the jury shall not reduce the amount of the assess- 
ment complained of, the respondent shall recover costs 

i Stats. 1873, ch. 288. 



BETTERMENT LAW. 225 

against the petitioner, which costs shall be a lien upon the 
estate, and be collected in the same manner as the assess- 
ment ; but if the jury shall reduce the amount of the 
assessment, the petitioner shall recover costs, and all 
assessments shall be a lien on the estate for one year after 
the final judgment, in any suit or proceeding where the 
amount or validity of the same is in question, and be col- 
lected in the same manner as original assessments. 

9. When an assessment is made upon an estate, the 
whole or airy portion of which is leased, the owner of the 
estate shall pay the assessment, and may thereafter collect 
of the lessee an additional rent for the portion of the estate 
so leased, equal to ten per centum per annum on that pro- 
portion of the whole sum paid, which the leased portion 
bears to the whole estate, after deducting from the whole 
sum so paid any amount he may have received for damages 
to the estate above what he has necessarily expended on such 
estate by reason of such damages. 

10. This act, except section four, shall not take effect in 
an} r town until the same is accepted by such town at a 
legal meeting called for that purpose, unless the town has 
])assed the vote of acceptance provided for by section four 
of chapter one hundred and sixty-nine of the acts of the 
year eighteen hundred and sixty-nine. 1 

11. Any assessment upon real estate, for the benefit and 
advantage thereto, from the laying out, altering, widening, 
grading, or continuing any wa} T , made prior to the twenty- 
sixth day of May, in the } r ear one thousand eight hundred 
and seventy-one, which is invalid by reason of smj error 
or irregularity in the assessment, and which has not been 
paid, or which has been paid and recovered back, may be 
reassessed by the board qualified to make such assessment, 
to the amount for which the original assessment ought to 
have been made, and the same shall be a lien upon the 
estate so assessed, and be collected in the same manner as 
reassessed taxes are collected. 2 (See sections forty and 
forty-one of preceding chapter as to assessing betterments.) 

i Stats. 1871, eh. 382. 2 stats. 1872, ch. 246. 

15 



226 TOWN AND PARISH OFFICER. 



CHAPTER XXV. 

SURVEYORS AND REPAIRS OF HIGHWAYS. 

1. If a person chosen surveyor of highways refuses to 
serve, he shall forfeit a sum not exceeding ten dollars ; but 
no person shall be obliged to serve oftener than once in 
three years. 1 

It seems that selectmen may also be surveyors of highways. 2 But 
selectmen, unless specially authorized, cannot make contracts for re- 
pair of highways. 3 

2. A surveyor of highways who neglects the duties of 
his office shall forfeit ten dollars for each neglect ; and he 
may be prosecuted by indictment for any deficiency in the 
highways within his limits occasioned by his fault or 
neglect. 

3. If a town is sentenced to pay a fine for a deficiency 
in the highways or town ways therein, any surveyor 
through whose fault or neglect such deficiency existed, shall 
be liable for the amount of such fine and all costs, to be 
recovered by the town in an action of tort. 4 

A surveyor is not liable otherwise to the town than as herein pro- 
vided, and consequently is not liable for damages recovered of the 
town on account of defects in its highway owing to his neglect. 5 

4. To '* repair " a way is to refit, make good, or restore an exist- 
ing one, not to make a new one or widen the old one by including 
additional land. The surveyor has no lawful authority to use the 
money placed in his hands for ordinary repairs on existing roads, in 
making new structures and additions thereto. 6 

i Gen. Stats, ch. 18, § 74. 3 Clark v. Russell, 116 Mass. 455; 

2 Benjamin v. Wheeler, 15 Gray, Hawks v. Charlemont, 107 Mass, 414. 

490 ; Bay State Brick Co. v. Foster, * Gen. Stats, ch. 18, §§ 75, 76. 

115 Mass. 431 ; but, quaere, whether 5 White v. Phillipston, 10 Met. 

the acceptance of office of surveyor 108. 

incapacitates one to act as select- 6 Todd v. Rowley, 8 Allen, 58 ; 

man. lb. Parker v. Lowell, 11 Gray, 355. 



SURVEYORS AND REPAIRS OF HIGHWAYS. 227 

5. A bridge would seem to include to some extent the approaches 
to it as appendages to it. The particular extent must be determined 
by what is reasonable under the circumstances of each case. This 
matter becomes important when the bridge is to be kept in repair by 
a toll company, railroad company, or some party other than the town 
in which it is situated, which has the care of the roads approaching 
it also. 1 

6. Towns may bestow labor upon all parts of the located way, and 
may make such changes in the natural surface of the soil as will add 
to the convenience or safety of the traveller. If, in consequence of 
such changes, the water accumulating upon the surface of the way 
by the fall of rain or the melting of snow pours on to adjoining lands 
in different places or in somewhat greater quantities in particular 
places than it otherwise would have done, that is to be considered as 
one of the natural, probable, or necessary consequences resulting from 
the establishment and maintenance of the way ; and therefore no 
action will lie for such an injury, as for a tort. 2 

And the owner of the land may raise his land, or may erect upon 
it a building or other structure which shall prevent this effect. 2 

But see in this connection sections sixteen and twenty-five be- 
low. 

7. And it is the settled rule of law in this commonwealth that in all 
cases where a highway, turnpike, bridge, town way, or other way is laid 
across a natural stream of water, it is the duty of those who use such 
privilege to make provision by open bridges, culverts, or other means 
for the free current of the water, so that it shall not be obstructed 
and pent up to flow back on lands belonging to the riparian proprie- 
tors. And it is their duty not only to make such bridge, culvert, or 
passage for water, but to keep it in such condition that it shall not 
obstruct the stream. 3 

8. When two or more towns are required by law to 
maintain or keep in repair a bridge upon a highway or 
town way, and differ as to the mode or time of doing the 
same, the county commissioners having jurisdiction to lay 
out highways in either of such towns to whom applica- 
tion is first made by one of the towns, may, after a hearing 
upon due notice to all parties interested, pass such orders 
concerning the maintenance and repair of such bridge as in 
their opinion the public good may require. Such orders 
shall be final, and shall be enforced in the same man- 

1 Commonwealth v. Deerfield, 6 601; Franklin v. Fish, 13 Allen, 
Allen, 455. 212. 

2 Flagg I?. Worcester, 13 Gray, 3 Parker v. Lowell, 11 Gray, 335. 



228 TOWN AND PARISH OFFICER. 

ner as other orders by the commissioners are by law 
enforced. 1 

9. Towns shall vote to raise such sums of money as 
are necessary for making and repairing highways and town 
ways ; and order that the same be assessed upon the polls 
and estates of the inhabitants, residents, and non-residents, 
as other town charges are assessed ; and the same shall be 
collected as other town taxes are collected. 2 (And the 
said sums so voted shall be carefully and judiciously ex- 
pended by the surveyors of highways, each in his own dis- 
trict, when the town is divided into highway districts, and 
in all cases under the direction of the selectmen or by the 
road commissioners, in making and repairing said ways. 3 ) 

10. The lands of non-resident proprietors shall be taxed 
for the making and repairing of highwa3 T s in the same man- 
ner as for other town taxes ; and upon default of payment, 
the same proceedings shall be had as are provided for the 
collection of other town taxes of such persons. 

11. The selectmen of every town having more than one 
surveyor of highwa} 7 s, shall annually in writing before the 
first day of May, assign to each surveyor the limits and 
divisions of the highways and town ways to be kept in 
repair by him. 

12. The surveyor shall give reasonable notice, as di- 
rected by the town to each person in his list, of the sum he 
is assessed to the highwaj^s and town ways ; and to the 
inhabitants within the limits of his district, assessed as 
aforesaid, seven days' notice of the times and places he 
shall appoint, extraordinar} r casualties excepted, for pro- 
viding materials and working on the highwaj^s and town 
ways ; and each inhabitant shall have an opportunity to 
work thereon, in person or by his substitute, or with his 
oxen, horses, cart, and plough, at the prices which the 
town shall affix to such labor, to the full amount of the sum 
at which he is assessed ; but if any person so assessed pays 
to the survej^or in money the sum assessed to him, the 

i Gen. Stats, ch. 44, § 2. 3 stats. 1877, ch. 58. 

2 Stats. 1871, ch. 298. 



SURVEYORS AND REPAIRS OF HIGHWAYS. 229 

surveyor shall, according to his best judgment, carefully 
expend the sum so paid in repairing said ways. 

13. Surveyors of highways, except as is provided in the 
following section, and in sections six and nine of chapter 
forty-six, ma}' cut down or lop off trees and bushes, and 
dig up and remove whatever obstructs or encumbers a high- 
way or town wa}', or hinders, incommodes, or endangers 
persons travelling thereon ; and when such way is encum- 
bered with snow they shall forthwith cause the same to be 
removed, or so trodden down as to make the way safe and 
convenient 1 (and may sell for the benefit of the town, after 
thirt}' days' notice in writing to the owners of the same, 
smy trees, brush, or other article of value. 2 ) 

14. No individual not authorized by a surveyor can lawfully enter 
upon the land without the limits of the worked road, and take and 
remove earth or interfere with the same by placing rocks, stones, and 
rubbish upon the same, without leave of the owner of the land bor- 
dering upon such highway. 3 The decision of the surveyor acting 
within the scope of his authority, that a structure in a highway is an 
obstruction to public travel, is conclusive ; and evidence is not ad- 
missible to show that it is not an obstruction in fact, or that the 
removal will seriously incommode and damage the person who placed 
it there, or that the surveyor did not act in good faith in deciding 
that it was an obstruction to public travel. 4 

15. No surveyor or other person shall remove or take 
down fences, gates, or bars, placed on a highway or town 
way for the purpose of preventing the spreading of a dis- 
ease which may be dangerous to the public health. 

16. No surveyor of highways shall, without the ap- 
probation of the selectmen first had in writing, cause a 
watercourse occasioned by the wash of a highway or town 
way to be so conveyed by the side of such way as to in- 
commode any, house, store, shop, or other building, or to 
obstruct any person in the prosecution of his business. Per- 
sons aggrieved by a violation of this section may complain 
to the selectmen or mayor and aldermen, who shall there- 

1 Gen. Stats, ch. 44, §§ 4-8. * Bay State Brick Co. v. Foster, 

2 Stats. 1874, ch. 280. 115 Mass. 431. 
8 Hollenbeck v. Rowley, 8 Allen, 

473. 



230 TOWN AND PARISH OFFICER. 

upon view the watercourse, and may direct the surveyor to 
alter the same in such manner as they shall determine. 

17. Towns may authorize their surveyors or any other 
person to enter into contracts for making or repairing the 
highways or town ways within the same. 

18. They may empower their surveyors to collect all 
such taxes as are not paid in labor or otherwise within the 
time limited by law, or at such periods as may be agreed 
upon by the town ; and for that purpose the assessors shall 
deliver to them warrants of distress, in substance like the 
warrants prescribed by law for collecting other town taxes ; 
or they may deliver a warrant for collecting the deficiency 
in any highway tax to the collector, who shall then proceed 
to collect the same in like manner as other taxes are by 
law to be collected, and shall pay over the same to the re- 
spective surveyors, who shall account with the selectmen 
for the expenditure thereof. 

19. When there is a deficiency either of labor or money 
in the amount appropriated for the repair of highways or 
town wajs within the limits of an}^ surveyor, or when said 
amount is not furnished or paid to him, so that he is unable 
to make such repairs, he may to an amount not exceeding 
ten dollars employ persons to make such repairs ; and the 
persons so employed shall be paid therefor by the town. 

20. If a town neglects to vote a sufficient sum of money 
for the purpose of repairing the highways and town ways, 
or does not otherwise effectually provide therefor, each of 
its surveyors, first having obtained the consent of the 
selectmen for that purpose in writing, may employ persons 
to repair the highways and town ways in their respective 
districts, so that the same shall be safe and convenient for 
travellers at all seasons of the year, and the persons so 
employed shall be paid therefor by the town. 

21. Two-thirds at least of the sums of money granted 
by each town for repairing highways and town ways, shall 
be laid out and expended for that purpose before the first 
day of July next after the same are granted, or at such 
other time or times as the town at a legal meeting called 



SURVEYORS AND REPAIRS OF HIGHWAYS. 231 

for that purpose shall determine. If any part of the money 
raised is to be expended in labor and materials in the 
month of March or April of the succeeding year, and after 
the surveyors of highwa}'s for such year are chosen and 
qualified, it shall be expended by the surveyors to whom 
the tax was committed, under the direction of the survey- 
ors of the succeeding year having charge of the repairs of 
the highways and town ways in the district in which the 
same is to be thus expended. 

22. Every surveyor shall exhibit his tax bill to the 
selectmen on the first Monday of Jury annually, and also 
at the expiration of the term for which he is appointed ; 
and at those times shall render an account of all moneys 
expended by him on highways and town ways. For each 
neglect he shall forfeit a sum not exceeding fifty dollars. 

23. At the expiration of his term the surveyor shall 
render to the assessors a list of such persons as have 
neglected or refused to work out or otherwise pay their 
highway tax, when required by him as provided in section 
seven ; and such deficient sums shall be collected and paid 
into the treasury like other town taxes. 

24. If any money remains unexpended in the hands of a 
surveyor at the expiration of his office, he shall pay the 
same to the town treasurer, who, after demand, may re- 
cover the same in an action of contract for money had and 
received, with twenty per cent in addition thereto, to the 
use of the town. 

25. When an owner of land adjoining a highway or town 
way sustains damage in his property by reason of any rais- 
ing, lowering, or other act, done for the purpose of re- 
pairing such way, he shall have compensation therefor, to 
be determined by the selectmen or mayor and aldermen ; 
with whom he shall file his petition therefor after the com- 
mencement, and within one year from the completion of 
the work ; and who shall finally adjudicate upon the ques- 
tion of damages within thirty daj^s after the filing of the 
petition therefor, unless the parties agree in writing to 
extend the time. The benefit, if any, which the complain- 



232 TOWN AND PARISH OFFICER. 

ant may receive by reason of such alteration or repair shall 
be allowed by way of set-off. 1 

26. If the owner of land receives injury by reason of the turning 
of a watercourse by a surveyor without authority, his only remedy is 
under the preceding section. 2 

27. If the petitioner is aggrieved, either by the estimate 
of his damages or by a refusal or neglect to estimate the 
same, he may, within one year from the expiration of said 
thirty days, apply for a jury, and have his damages ascer- 
tained in the manner provided where land is taken in laying 
out highways. Or he may, by agreement with the adverse 
party, and upon application made within the same time, 
have them ascertained by a committee to be appointed, in 
the city of Boston by the superior court, and elsewhere by 
the county commissioners in their respective jurisdictions. 

28. If the life of a person is lost by reason of a de- 
fect or want of repair of a highway, town way, causeway, 
or bridge, or for want of suitable rails on such way or 
bridge, the county, town, or person, by law obliged to re- 
pair the same, shall be liable to a fine of one thousand 
dollars, to be recovered by indictment to the use of the 
executor or administrator of the deceased person, for the 
benefit of his heirs, devisees, or creditors : provided, that 
the county, town, or person, had previous reasonable notice 
of the defect or want of repair of such way or bridge. 3 

29 . Highways, town ways, streets, causeways and bridges 
shall be kept in repair at the expense of the town, city or 
place in which they are situated when other provision is not 
made therefor, so that the same may be reasonably safe 
and convenient for travellers, with their horses, teams and 
carriages at all seasons of the year. 

30. If a person receives or suffers bodil} r injury, or dam- 
age in his property, through a defect or want of repair, or 
of sufficient railing in or upon a highway, town way, cause- 
way or bridge which might have been remedied, or which 

i Gen. Stats, ch. 44, §§ 9-19. 3 Gen. Stats, ch. 44, §§ 20, 21. 

2 Benjamin v. Wheeler, 15 Gray, 
486. 



SURVEYORS AND REPAIRS OF HIGHWAYS. 233 

damage or injury might have been prevented b} r reasonable 
care and diligence on the part of the county, town, place 
or persons by law obliged to repair the same, he may 
recover in the manner hereinafter provided, of the said 
county, town, place or persons, the amount of damage sus- 
tained thereby, if such county, town, place or persons had 
reasonable notice of the defect or might have had notice 
thereof by the exercise of proper care and diligence on their 
part ; but no such damage shall be recovered by a person 
whose carriage and load thereon exceed the weight of six 
tons. 

31. Any person injured in the manner set forth in the 
preceding section shall within thirtj- days thereafter give 
notice to the county, town, place or persons by law obliged 
to keep said highway, town way, causeway or bridge in 
repair, of the time, place and cause of the said injury or 
damage, and if the said county, town, place or persons do 
not pay the amount thereof, he may within two years after 
the date of said injury or damage bring an action of tort 
against said count}', town, place or persons, in the superior 
court to recover the same : provided, however, that no per- 
son shall recover in any such action a greater sum for 
damages than four thousand dollars. 

No person shall recover from any town, city, county or place, in 
any action provided for by chapter two hundred and thirty-four of 
the acts of the year eighteen hundred and seventy-seven (sections 
thirty to thirty-four of this chapter inclusive), a greater sum for 
damages or injury than one-fifth of one per cent of the valuation of 
such town, city, county or place, as ascertained by the state valuation 
of estates within the commonwealth last preceding the commence- 
ment of the action, nor a greater sum than four thousand dollars. 1 

32. The notice hereinbefore required may be given in the 
case of a county, to any one of the county commissioners 
or to the county treasurer ; in the case of a city, to the 
mayor, the city clerk or treasurer, or to ap.y police officer ; 
and in the case of a town, to one of the selectmen or to the 
town treasurer or clerk ; and may also be given by the 
person injured or by any other person in his behalf : pro- 

i Stats. 1878, ch. 259. 



234 TOWN AND PARISH OFFICER. 

vided, however, that if from physical or mental incapacity 
it be impossible for the person injured to give the notice 
within the time hereinbefore provided, he may give notice 
within ten da} T s after said incapacity is removed. 

33. Such action against any such town, place or persons, 
shall be brought in the county wherein the said town or 
place is situated or said persons reside : provided, that 
actions against the city of Boston may be brought in the 
county of Middlesex or in the county of Norfolk or in the 
county in which the party bringing such action resides ; 
and actions against the town of Nantucket, or any town in 
Dukes County, may be brought in the county of Bristol. 1 

34. The party injured, in order to recover of the town, must have 
been using the way or bridge as a traveller, for legitimate purposes, 
in the usual and ordinary mode, including the use of any vehicle or 
animal which is suitable for a way prepared for the purpose of supply- 
ing the usual and common accommodation for persons having occa- 
sion to pass over the same ; therefore a person who is using the high- 
way for play cannot recover damages for injuries caused by a defect 
therein ; nor the owner of an animal which has escaped and run into 
the highway without a driver ; nor a person who has stopped on a 
highway for the purpose of conversation, and leaned against a railing, 
which (by reason of its insufficiency) had given way, and caused him 
to fall and receive injury ; but one who is walking in the highway 
simply for exercise is properly regarded as a traveller. 2 

85. And he must at the time of the accident have been using such 
reasonable care as the circumstances required ; and if he knows or 
has reason to believe that a road is dangerous, when he enters upon it, 
or before he has reached any dangerous place, he cannot, in the ex- 
ercise of ordinary prudence, proceed and take his chance, and, if in- 
jured, hold the town responsible. 3 And using due care includes using 
a proper horse and vehicle, with strong and suitable harness. 4 

36. Under this rule, a town is not liable where a horse, being fright- 
ened by an accident, breaks away from his driver, and escapes from 
all control ; and afterward, while running at large, meets with an in- 
jury through a defect in a highway ; 5 or when a horse, by reason of 

1 Stats. 1877, ch. 234. 25 ; Horton v. Ipswich, 12 Cush. 492; 

2 Blodgettv. Boston, 8 Allen, 238; Bigelow v. Rutland, 4 Cush. 247; 
Richards v. Enfield, 13 Gray, 344 ; Wilson v. Charlestown, 8 Allen, 138. 
Gregory v. Adams, 14 Gray, 242 ; 4 Bliss v. Wilbraham, 8 Allen, 564 ; 
Stickney v. Salem, 3 Allen, 374; Murdock v. Warwick, 4 Gray, 178, 
Hamilton v. Boston, 14 Allen, 475. 180. 

3 Stevens v. Boxford, 10 Allen, 5 Davis v. Dudley, 4 Allen, 557. 



SURVEYORS AND REPAIRS OF HIGHWAYS. 235 

fright, disease, or viciousness, becomes actually -uncontrollable, so that 
his driver cannot stop him, direct his course, or exercise control over 
him, unless it appears that the injury would have occurred, by reason 
of the defect in the highway, if the horse had not been so uncontrolla- 
ble. " But a horse is not to be- considered uncontrollable that merely 
shies or starts, or is momentarily not controlled by the driver." And 
where one is deficient in any faculty, such as sight or hearing, it would 
seem that common prudence requires of him greater care in walking 
upon the streets and avoiding obstructions than of persons not so 
deficient. 1 

37. It has been held that a traveller may be in the use of due care, 
even if intoxicated, although that would be an important circum- 
stance to be considered by the jury, upon the question whether due 
care was used ; and the fact that he had previous knowledge of the 
defect, is not conclusive evidence that he was wanting in due care at 
the time of the accident. 2 

38. The want of repair or defect in the highway must be the direct 
and immediate cause of the injury, in order to make the town liable. 
But it is often a question of much difficulty to determine what is 
a direct cause. 3 

39. And the party injured cannot recover, unless the defect in the 
highway was the sole cause of the injury, with this single exception, 
where the contributing cause was a pure accident, and one which 
common prudence and sagacity could not have foreseen and provided 
against. 4 

40. And, in order to render the town liable, the accident must be 
occasioned by causes which occur entirely within the highway. 5 Nor 
is an object in the highway, or the condition of the surface of the 
road which is not otherwise a hindrance or obstacle to travellers, ex- 
cept that it may, by its appearance or shape, be the cause of fright 
in a horse, and over and by which a traveller might have passed in 
safety, but for the fear excited in the animal, a defect or want of re- 
pair for which a town is liable. 6 

41. But towns are not necessarily chargeable with damage arising 
from every obstruction even within the limits of a located highway. 
They are not liable for such obstructions in portions of the highway 
not a part of the travelled path, and not so connected with it that they 

i Titus v. Northbridge, 97 Mass. * R well v. Lowell, 7 Gray, 100; 

258. Also Horton v. Taunton, ib. Kidder v. Dunstable, ib. 104; Palmer 

2G6; Fogg v. Nahant, 98 Mass. 578; v. Andover, 2 Cush. 600. 

Winn v. Lowell, 1 Allen, 177. 5 Richards v. Enfield, 13 Gray, 

2 Alger v. Lowell, 3 Allen, 406; 346. 

Whittaker v. West Boylston, 97 6 Kingsbury v. Dedham, 13 Allen, 

Mass. 274. 189. See also Barber v. Roxbury, 

3 Jenks v. Wilbraham, 11 Gray, 11 Allen, 318. 
142; Marble v. Worcester, 4 Gray, 

395. 



236 TOWN AND PARISH OFFICER. 

will affect the security or convenience for travel of those using the 
travelled path. Therefore where the injury was sustained by a per- 
son using the public road for the purpose of entering upon his private 
way, although it was occasioned by an obstruction within the limits 
of the located highway, but without the road for public travel, the 
town was held not liable. 1 But in order to restrict the liability of 
towns to defects within the limits of the highway, those limits should 
be indicated in some way so that the traveller may know when he is 
without the highway. 2 

42. Nor is a town responsible for a defect or want of repair in a 
bridge whereby a public highway passes over a railroad, the proprie- 
tors of which are bound by law to keep the bridge in repair ; 3 but 
the liability of the town is only limited to the extent to which the 
construction and operation of the railroad deprives the town of the 
power to discharge the duty imposed upon it by law. 4 

43. It is difficult to define by any general proposition the extent of 
the obligation of a town to provide sufficient railing. Mr. Justice 
Wells says : " They are bound to provide suitable railings against 
precipices, excavations, steep banks, deep water, &c, within or with- 
out the limits of the road, if they are so imminent to the line of pub- 
lic travel as to expose travellers to unusual hazard. Whether or not 
such a railing is necessary for the reasonable security of the public is 
a question which depends very much upon the circumstances of the 
particular locality in reference to which the question arises. But the 
essential and invariable term, or element, in all cases where a railing 
is required, is some dangerous object or place outside of the required 
railing, in or upon which the traveller may come to harm, if not 
warned or detained therefrom by the railing. The liability of horses 
to fright from the passage of railway trains near by may render more 
imperative the necessity and the duty of maintaining a railing, wher- 
ever there is occasion for a railing. But whether the absence of a rail- 
ing is a defect, and the neglect to maintain one a breach of duty 
which will render a town liable, must be determined by the character 
of the place or object, between which and the travelled road it is 
claimed that the barrier should be interposed." 5 A railing suitable for 
the exigencies of ordinary travel is enough. 6 

But towns are not obliged to put up railings merely to prevent 
travellers from straying out of the highway where there is no unsafe 
place immediately contiguous to the way. 7 

1 Shephardson v. Colerain, 13 Met. 184; and cases cited, illustrating the 
55; Smith v. Wendell, 7 Cush. 498; rule. 

Smith v. Dedham, 8 Cush. 522. 5 Adams v. Natick, 13 Allen, 429; 

2 Hay den v. Attleborough, 7 Gray, Morland v. Ipswich, 110 Mass. 522. 
338. 6 Lyman v. Amherst, 107 Mass. 

3 Sawyer v. Northfield, 7 Cush. 339. 

490. 7 Sparhawk v. Salem, 1 Allen, 30. 

4 Davis v. Leominster, 1 Allen, 



SURVEYORS AND REPAIRS OF HIGHWAYS. 237 

44. The injury for which damages are recoverable must be "a 
physical injury to one's person, or his horse, or other material object 
which can be denominated property, and does not extend to expenses 
incurred, or loss, unless they are incident to such physical injury and 
constitute one item of the damages caused by it." Therefore one 
cannot recover for trouble, expense, and loss of time in extricating his 
horses and sleigh from the snow which the town negligently suffered 
to remain in the road and obstruct his passing over it. Nor can one 
recover damages caused to him by being prevented by snow from 
passing over the road with his teams and transporting his logs to 
a saw-mill, and otherwise working in his wood-lot. Nor can a hus- 
band, whose wife is injured by a defect in the highway, recover for 
medical and other expenses incurred by him, or for the loss of her 
service, such damages being consequential or too remote. But where 
there is an injury to the person — a bodily injury — which causes 
a mental suffering, such suffering is a part of the injury for which the 
party is entitled to damages ; but where he is not injured in his person, 
but merely has incurred risk and peril which caused fright and mental 
suffering, he cannot recover damages. 1 

45. " The question what is safe and convenient " (as to a highway) 
"is a question which in most cases it is the appropriate province of the 
jury to settle, and considerations relating to the nature and amount of 
travel, and what it is reasonably practicable to do in constructing and 
maintaining the way in question, will always have weight with them. 
Absolute safety beyond the possibility of accident will never be re- 
quired ; for that would be impracticable. But if the jury find that the 
defect exists within the reasonable application of the rule given, it is 
enough." Colt, J. 2 

46. A town is not liable for an injury received by reason of the nar- 
rowness and crookedness of a highway duly located. 3 

It is held that an object with which no collision takes place will 
not make a town liable for an accident resulting from the running of 
a horse through fright at the sight of the object. 4 

Where the vice of the horse caused or contributed to the running, 
the plaintiff cannot recover, though the vice was unknown to the 
plaintiff, and he used reasonable care in obtaining and managing the 
horse. 5 

47. If, before the entry of an action provided for in the 
preceding section (section twenty-two of chapter fort}'- 
four of General Statutes, now superseded hj section thirty 

1 Brailey v. Southborough, 6 Cush. 3 Smith v. Wakefield, 105 Mass. 
141; Holman v. Townsend, 13 Met. 473. 

297; Harwood v. Lowell, 4 Cush. 4 Cook v. Montague, 115 Mass. 

310; Canning v. Williamstown, 1 571, and cases cited. 

Cush. 451. 5 Brooks v. Acton, 117 Mass. 204. 

2 George v. Haverhill, 110 Mass. 
510. 



238 TOWN AND PARISH OFFICER. 

of this chapter) , the defendant tenders to the plaintiff the 
amount which he would be entitled to recover, together 
with all legal costs, and the plaintiff does not accept the 
same, and does not recover upon the trial more than the 
sum so tendered, the defendant shall recover his costs. 

48. If a town neglects to repair any of the wa}^s or 
bridges which it is by law obliged to keep in repair, or 
neglects to make the same safe and convenient when 
encumbered with snow, such town shall pay such fine 
as the court in its discretion may order. 

49. Except in cases where it is otherwise specially pro- 
vided, fines imposed on a town for deficiencies in the ways 
and bridges within the same shall be appropriated to the 
repairing of such ways and bridges ; and the court impos- 
ing such fine shall appoint one or more persons to superin- 
tend the collection and application of the same, who shall 
make a return of their doings therein to the court. 

50. If, on the trial of an indictment or action brought 
to recover damages for an injury received by reason of a 
deficiency or want of repair in a highway, town way, cause- 
way, or bridge, it appears that the county, town, or person, 
against whom such suit is brought, has, at any time within 
six years before such injury, made repairs on such way or 
bridge, such county, town, or person shall not deny the 
location thereof. 1 

But a vote to make repairs, so long as it remains unexecuted by the 
actual making of repairs, is not enough. 2 

Repairs made by a duly elected surveyor, within his district, are 
made by the town. 3 

51. Every town shall, in the manner provided in this 
chapter, erect and maintain guide-posts on the highways 
and other ways within the town, at such places as are nec- 
essary or convenient for the direction of travellers . 

52. The selectmen of each town shall submit to the in- 
habitants, at every annual meeting, a report of all the 

i Gen. Stats, ch. 44, §§ 23-26. 3 Hayden v. Attleborough, 7 Gray, 

2 Brown v. Lawrence, 120 Mass. 344. 
1. See Stockwell v. Fitchburg, 110 
Mass. 305. 



SURVEYORS AND REPAIRS OF HIGHWAYS. 239 

places in which guide-posts are erected and maintained 
within the town, and of all places at which, in their opin- 
ion, they ought to be erected and maintained. For each 
neglect or refusal to make such report they shall severally 
forfeit the sum of ten dollars. 

53. Upon the report of the selectmen, the town shall 
determine the several places at which guide-posts shall be 
erected and maintained, which shall be recorded in the 
town records. A town which neglects or refuses to deter- 
mine such places, and to cause a record thereof to be 
made, shall forfeit the sum of five dollars for every month 
during which it neglects or refuses so to do ; and in such 
case, upon any trial for not erecting or maintaining guide- 
posts reported to be necessary or convenient by the select- 
men, the town shall be estopped from alleging that such 
guide-posts were not necessary or convenient. 

54. At each of the places determined by the town there 
shall be erected a substantial post of not less than eight 
feet in height, near the upper end of which shall be placed 
a board or boards, and upon each board shall be plainly 
and legibly painted, or otherwise marked, the name of the 
next town or place, and such other town or place of note 
as the selectmen think proper, to which each of such 
roads leads, together with the distance or number of miles 
to the same ; and also the figure of a hand, with the fore- 
finger thereof pointing towards the towns or places to 
which said roads lead : provided, that the inhabitants of 
any town may at their annual meeting agree upon some 
suitable substitute for such guide-posts. 

55. Every town which neglects or refuses to erect and 
maintain such guide-posts, or some suitable substitutes 
therefor, shall forfeit annually the sum of five dollars for 
every guide-post which it so neglects or refuses to maintain. 

56. A person owning or occupying lands adjoining a 
highway or road in a town may construct a sidewalk within 
such highway or road, and along the line of such land, 
indicating the width of such sidewalk by trees, posts, or 
curb-stones, set at reasonable distances apart, or by a rail- 



240 TOWN AND PARISH OFFICER. 

ing erected thereto ; and where a sidewalk is so con- 
structed, whoever rides or drives a horse or team upon 
and along the same shall forfeit tjie sum of one dollar, to 
be recovered by such owner or occupant in an action of 
tort. But this section shall not diminish or interfere with 
the authority of surveyors of highways, or any other au- 
thority that can be legally exercised over highways or 
roads ; nor shall it in any manner diminish the liability of 
any person for unreasonably obstructing highways or roads, 
nor shall it apply to cities. 

57. In cities in which the city" council, and in towns in 
which the inhabitants, have adopted the provisions of this 
and the following section, the mayor and aldermen or se- 
lectmen may establish and grade sidewalks in such streets 
as in their judgment the public convenience may require, 
and may assess the abutters on such sidewalks one half the 
expense of the same, the residue being paid by such city 
or town. All assessments so made shall be a lien upon 
the abutting lands in the same manner as taxes are a lien 
upon real estate. 

58. No sidewalk constructed or graded in a city or town 
shall be dug up or obstructed in any part thereof, without 
the consent of the ma} T or and aldermen of the city, or of 
the selectmen of the town, in which such sidewalk is es- 
tablished. 1 

59. Towns which have adopted or shall adopt the pro- 
visions of sections seven and eight of chapter foily-five 
of the General Statutes (the two preceding sections) may, 
at their annual town meetings, establish by-laws to provide 
for the removal of snow and ice, to such extent as they 
may deem expedient, from sidewalks (" within the limits 
of the highways or town ways in such towns "). 2 

60. Said by-laws shall determine the time and manner 
of such removal, and annex penalties, not exceeding ten 
dollars, for each violation of their provisions by any owner 
or tenant of the estate abutting upon the sidewalk from 
which the snow and ice are required to be removed ; and 

i Gen. Stats, ch. 45, §§ 1-8. 2 stats. 1878, ch. 89. 



SURVEYORS AND REPAIRS OF HIGHWAYS. 241 

such penalties shall be recovered, in an action of tort, in 
the name and to the use of the town. 1 

61. Where buildings or fences have been erected and 
continued for more than twenty years, fronting upon or 
against a training- field, burying-place, common landing- 
place, highway, private way, street, lane, or alley, and 
from the length of time or otherwise the boundaries thereof 
are not known or cannot be made certain by the records or 
by monuments, such fences or buildings shall be deemed 
'and taken to be the true boundaries thereof. When such 
boundaries can be made certain, no length of time, less 
than forty years, shall justify the continuance of a fence 
or building on a town or private way, or on a highway, 
training-field, burying-place, landing-place, or other land 
appropriated for the general use or convenience of the in- 
habitants of the commonwealth, or of a count}^, town, or 
parish ; but the same ma} r , upon the presentment of a 
grand jury, be removed as a nuisance. 2 

62. It is sufficient if the fence has been substantially in the same 
place. 3 And where the fence is a Virginia fence, a straight line 
drawn through its centre is to be taken as the true boundary 4 If the 
original boundary can be made certain by ancient monuments, al- 
though the same are not now in existence, it must be taken to be the 
true boundary ; but when it cannot be made certain, the fence is con- 
clusively evidence, and not merely prima facie, of the true boundary. 5 

63. The question whether a fence, more or less near a highway, is 
"upon or against the highway," within the meaning of the foregoing 
statute, is a question of fact for the jury. 6 Fences maintained under 
a claim of right for forty years within the limits of the highway 
give to the owner an absolute right to continue them there as against 
the public. 7 

64. The limitations of time prescribed in the preceding 
section (section sixt}'-one) shall take effect from and after 
the thirty-first day of December, in the year one thousand 
eight hundred and thirty-nine. 

1 Stats. 1863, ch. 114, §§ 1, 2. 5 Wood v. Quincy, 11 Cush. 487; 

2 Gen. Stats, ch. 46, § 1. Pettingill v. Porter, 3 Allen, 349. 

3 Hollenbeck v. Rowlev, 8 Allen, 6 Sprague v. Waite, 17 Pick. 318. 

J 473. 7 Cutter v. Cambridge, 6 Allen, 20. 

4 Holbrook v. Mc Bride, 4 Gray, 
215. 

16 



242 TOWN AND PARISH OFFICER. 

65. When a building, fence, or other encumbrance, 
erected or continued on a town or private wa} r , or on a 
highway, training-field, burying-place, landing-place, or 
other land appropriated for the general use or convenience 
of the inhabitants of the commonwealth, or of a county, 
town, or parish, is adjudged a nuisance and ordered to be 
abated, and the materials, upon a sale thereof by auction, 
shall be insufficient to pay the costs and charges of prose- 
cution and removal, the court may order the deficient sum 
to be raised and levied from the goods and chattels of the 
party convicted of erecting or continuing such nuisance. 

66. Any person may take down and remove gates, rails, 
bars, or fence [s], upon or across a highway, unless the 
same have been there placed for the purpose of preventing 
the spreading of a disease dangerous to the public health, 
or have been erected or continued by the license of the 
county commissioners or of the selectmen of the town ; in 
which case, a person aggrieved by such taking down and 
removal may apply to the commissioners, or selectmen, 
respectively, who may order the same to be replaced. 

67. If fence [s], gates, rails, or bars are upon or across 
a town way or private way, the same may be removed by 
the order of a justice of the peace, unless the same are 
there placed for the purpose of preventing the spreading 
of a disease dangerous to the public health, or unless the 
same are erected or continued b}^ license of the town, or 
of the person for whose use such private way was laid 
out ; and a person aggrieved by such removal may apply 
to the commissioners ; and if upon examination it appears 
that the same were erected or continued by license as afore- 
said, the commissioners shall order them to be replaced. 

68. The mayor and aldermen, selectmen, or any muni- 
cipal officer of a city or town to whom the care of the 
streets or roads may be intrusted, may authorize the plant- 
ing of shade trees therein, wherever it may not interfere 
with the public travel or with private rights ; and shade 
trees standing and trees planted pursuant to such license 
shall be deemed and taken to be the private property of the 



SURVEYORS AND REPAIRS OF HIGHWAYS. 243 

person so planting them, or upon whose premises they 
stand or are planted, and shall not be deemed a nuisance ; 
but upon complaint made to the mayor and aldermen, or 
selectmen, they may cause such trees to be removed at the 
expense of the owner thereof, if the public necessity 
seems to them so to require. 1 

Standing, in this section, means standing June 1, 1860, the date 
when the statute took effect. 2 

69. Whoever wantonly injures, defaces, tears, or de- 
stroys an ornamental or shade tree, or shrub, statue, 
fountain, rase, or other plant or fixture of ornament or 
utility, in a street, road, square, court, park, public gar- 
den, or other enclosure, shall forfeit not less than five, nor 
more than one hundred dollars, to be recovered by com- 
plaint, one half to the complainant, and the .other half to 
the use of the person upon whose property, or within whose 
premises, the trespass was committed. 

70. Whoever negligently or carelessly suffers any horse 
or other beast driven by or for him, or any beast belonging 
to him and lawfully on the highway, to break down, de- 
stroy, or injure any tree not his own, standing for use or 
ornament on said highway, or negligently or wilfully by any 
other means breaks down, destroys, or injures any such 
tree, shall be subject to an action for damages, at the suit 
of the owner or tenant of the land in front of which the 
tree stands. 

71. In a city in which the city council, and in a 
town in which the inhabitants, have accepted this section, 
the mayor and aldermen or selectmen may set out and 
maintain shade trees upon the public squares and high- 
ways, at the expense of such city or town, which may 
appropriate annually, for that purpose, a sum not exceeding 
twenty-five cents for each of its ratable polls in the year 
next preceding that in which such appropriation is made. 3 

72. No person who has by law a right to cut down or 

i Gen stats, ch. 46, §§ 2-6. 3 G en. Stats, ch. 46, §§ 7-9. 

2 White v. Godfrey, 97 Mass. 475. 



244 TOWN AND PARISH OFFICER. 

remove any ornamental or shade tree standing in any high- 
way, town way, or street, shall exercise such right without 
first giving notice of his intention to one of the selectmen 
of the town or mayor of the city in which the tree stands ; 
and, if the selectmen of the town or mayor and aldermen 
of the cit}^ desire to retain the tree, they shall give notice 
thereof to such person within ten days after his notice to 
them ; and in that case, the same course shall be taken 
and the same rules apply as to the assessment, appeal, 
and final determination and payment of the damage such 
person may suffer by the retaining of said tree, as in the 
case of damage done by an alteration in such highway, 
town way, or street. 

73. If any such person shall cut down, remove, or injure 
such tree without first giving the notice required in the 
foregoing section or in violation of any of the provisions 
thereof, or of the rights of the city or town acquired there- 
under to maintain the same, he shall suffer the penalty 
provided for the injury or destaging of ornamental or 
shade trees in the seventh section of the forty- sixth chapter 
of the General Statutes, and the penalty in such case shall 
accrue to the town or city. 

74. This act shall not be in force in any town or city 
until it shall be accepted by a majority of the legal voters 
in such town at a meeting legally called therefor, or by the 
city council. 1 

75. A city or town may make suitable by-laws and reg- 
ulations to prevent the pasturing of cattle or other animals, 
either with or without a keeper, upon any or all of the 
streets or ways in such city or town, and may annex 
penalties not exceeding twent}^ dollars for each violation 
thereof. But no such by-law or regulation shall affect the 
right of a person to the use of land within the limits of 
such way adjoining his own premises. 

76. A town may, at an annual meeting, establish by- 
laws to prevent persons from riding or driving horses at a 
rate faster than a walk over any bridge within the limits 

1 Stats. 1867, ch. 242. 



SURVEYORS AND REPAIRS OF HIGHWAYS. 245 

of such town, which shall have cost not less than five hun- 
dred dollars ; and annex penalties not exceeding one dollar 
for a breach thereof: but such by-laws shall first be ap- 
proved by the commissioners for the county in which such 
town lies. 

77. No person shall be liable to an}' of the penalties in 
the three (two) preceding sections, unless the commission- 
ers, town, and proprietors, respectively, keep posted up, 
at each end of such bridges, in some conspicuous place, a 
board, painted with a white ground, containing in black 
letters the substance of their said by-laws. 1 

If the by-laws are not posted up, and a person, crossing a bridge, 
without actual notice of such by-laws, receives an injury while violat- 
ing them, such violation will be no defence to his action for damages. 2 

78. When the (county) commissioners judge it necessary 
to establish a ferry, and no person appears to keep the 
same for the stated profits thereof, the town where such 
ferry may be shall provide one or more suitable persons to 
keep and attend the same at such place and in such times 
of the year as the commissioners order, which persons shall 
be licensed as aforesaid (that is, by the county commis- 
sioners, as provided in chapter forty-seven of General 
Statutes, and the tolls are established by the same author- 
ity) ; and the expense of maintaining such ferry, beyond 
the amount received for tolls, shall be paid by the town. 

79. If such ferry is established between two towns, they 
shall maintain the same, either jointly or alternately, as the 
commissioners shall order. 

80. A town neglecting to maintain a ferry, as provided 
in the two preceding sections, shall forfeit for each month's 
neglect a sum not exceeding one hundred dollars. 3 

81. In any case of a ferry now established between two towns, or 
when the county commissioners of any county shall judge it necessary 
to establish a ferry between two towns, said commissioners, upon the 
application of ten legal voters of either of such towns, may, after such 

1 Gen. Stats, ch. 45, §§ 10, 12, mack Bridge Corporation, 7 Gray, 
14. 457. 

2 Worcester v. Essex & Merri- 3 Gen. Stats, ch. 47, §§ 6-8. 



246 TOWN AND PARISH OFFICER. 

notice to said towns as said commissioners may order, and hearing 
thereon, determine and order that they shall maintain said ferry, 
either jointly or alternately, or that the expense of maintaining said 
ferry shall be borne by such towns equally or in any proportions that 
the said commissioners shall judge to be just and equitable. The 
determination and order of the commissioners, made as aforesaid, shall 
be final upon the towns interested : provided, however, that at any time 
thereafter and from time to time, as the exigency may require, the 
county commissioners of such county, upon like application and after 
like notice and hearing, may make such new determination and order 
in the manner above provided, as they shall then judge to be just 
and equitable. 

A town neglecting to maintain a ferry, as provided in the foregoing 
section, shall forfeit for each month's neglect a sum not exceeding one 
hundred dollars. 1 

82. The mayor and aldermen of cities, and the selectmen 
of towns, may select and lay out any lots of land within 
their respective limits, not appropriated to public uses, nor 
owned by any other city or town, as gravel and clay pits, 
from which earth and gravel necessary to be used in the 
construction, repair, or improvement of the streets or ways 
which such city or town may by law be bound to construct 
or keep in repair, may be taken, together with such ways 
as they may deem to be necessary for convenient access 
thereto. All proceedings in relation to the taking and lay- 
ing out of such land shall be the same as are now provided 
by law in the cases of laying out streets and town ways 
respectively ; and the report of such laying out shall specify 
the extent and depth of excavation to be permitted upon 
such land, and the time, not exceeding ten years next after 
such laying out, during which such land or way shall be 
held and used for the purposes aforesaid. 

83. Any person aggrieved in the assessment of his dam- 
ages by the board of mayor and aldermen, or selectmen, 
for land taken under this act, may have the matter of his 
complaint determined by a jury, in the same manner as is 
now provided by law in cases of highways, which jury shall 
be applied for within one year after such assessment. 

84. Any land taken by virtue of this act shall be held 

i Stats. 1874, ch. 265. 



SURVEYORS AND REPAIRS OF HIGHWAYS. 247 

and used by such cities or towns for no other purposes than 
those herein specified, and shall revert to the owner, his 
heirs and assigns, upon the expiration of the time limited ; 
and the owner may, during such time, enclose, occupy, 
and use such land, in any manner not inconsistent with the 
use of the same by such city or town for the purposes 
aforesaid. 1 

85. A corporation may, with the assent of the mayor 
and aldermen or selectmen in writing, dig up and open any 
street or way for the purpose of placing such pipes as are 
necessary in constructing its aqueduct, or for repairing or 
extending the same: provided, the same be done in such 
manner as not to prevent the convenient passing of teams 
and carriages. 2 

86. Whenever, in the opinion of the mayor and alder- 
men of a city, or the selectmen of a town, it is necessary to 
enter upon, use, or take an}^ land for the purpose of secur- 
ing or protecting any public way or bridge, it shall be law- 
ful for them to enter upon, use, or take the same. 

All damages sustained thereby shall be recovered in the 
manner provided for the assessment and award of damages 
occasioned by the laying out, altering, or discontinuance 
of town ways. 3 

87. The selectmen of any town where public convenience 
requires it, on the application of any person, may authorize 
such person, on his own land and in such manner as they 
may order, to construct and maintain within the limits of 
any highway in such town, or in any place conveniently 
accessible from such highway, a suitable watering-place for 
horses and other animals, to be used by the public ; and 
said selectmen, at any time when in their judgment such 
watering-place is no longer needed, or when public safety 
and convenience require it, may discontinue the same. 
Any person maintaining a watering-place in any town, in 
accordance with the first section of this act (the foregoing 
paragraph) , shall be paid by such town such sum as said 

1 Stats. 1869, ch. 237, §§ 1-3. 3 Stats. 1868, ch. 264. 

2 Gen. Stats, ch. 65, § 9. 



248 TOWN AND PARISH OFFICER. 

selectmen, in their order authorizing such watering-place, 
may determine, not exceeding five dollars a year, so long 
as the same is so maintained. 1 

88. When a party injured in his person or property by 
a defect in a highway, caused by the operations of a gas 
company in laying down or repairing its pipes or otherwise 
obstructing such way, recovers damages therefor of the 
town wherein such injury is received, such town shall, in 
addition to the damages so recovered against it, be entitled 
to recover all the taxable costs of the plaintiff and defend- 
ant, in the same action, in a suit brought against said gas 
company ; provided, said gas company be liable for said 
damages ; and provided, reasonable notice be given by such 
town to the gas company, so that it might have defended 
the original action. 2 

Any savings bank in this commonwealth is hereby authorized to 
receive funds, in trust, on deposit, to an unlimited amount, for any 
one or all of the hereinafter named purposes : said funds shall be 
placed upon interest in said bank, and the interest and dividends aris- 
ing therefrom shall be paid semi-annually to such town, city, or ceme- 
tery authorities as may be designated by the donors of said funds or 
the will of the person bequeathing the same ; said interest and divi- 
dends to be expended by such town, city, or cemetery authorities, 
within the precincts of such town, city, or cemetery, in setting out 
shade-trees in streets and parks, and in improving the same ; in pur- 
chasing land for parks and improving the same ; in maintaining ceme- 
teries or cemetery lots, and in erecting and maintaining drinking- 
fountains in public places ; for any one or all of the before named 
purposes as may be specified by the donors of said funds or the will 
of the person bequeathing the same. No part of the principal of said 
funds shall be withdrawn or expended, and it shall be exempt from 
attachment or levy on execution. 

The funds held in accordance with this act shall be known as the 
" Shade-tree and Cemetery Fund," and the treasurer of any savings 
bank in which said funds are deposited shall give a certificate of gift 
to each donor of such funds, and shall send by mail or deliver in the 
month of January, every third year after the first deposit, to the 
mayor of any city, or the chairman of the selectmen of any town, 
within the limits of which the interests and dividends of said funds 
are to be expended, a written statement, signed by such treasurer, of 
the amount of funds on deposit, for the purposes aforesaid, and said 

i Stats. 1870, ch. 119. 2 stats. 1860, ch. 121. 



SURVEYORS AND REPAIRS OF HIGHWAYS. 249 

statement shall be recorded in full in the office of the clerk for said 
city or town. 

In case any savings bank holding such funds shall surrender its 
charter or cease to do business, the supreme judicial court is hereby 
authorized to order said funds transferred and deposited in some other 
savings bank upon the same trusts as aforesaid ; and, if the laws au- 
thorizing such banks shall be repealed, said court is hereby authorized 
to order said funds transferred and deposited in such banking institu- 
tion as said court may deem proper and for the best interest of said 
funds, to be by it held upon the trusts aforesaid. 1 

Any executor, administrator, or trustee holding money for any of 
the foregoing purposes may be authorized by the judge of probate to 
deposit the same in a savings bank. 2 

i Stats. 1875, ch. 174. 2 stats. 1877, ch. 162. 



250 TOWN AND PARISH OFFICER. 



CHAPTER XXVI. 

RAILROADS CROSSING HIGHWAYS, ETC. 

1 . When a railroad is laid out across a highway or other 
way, it shall be constructed so as not to obstruct the same ; 
and (unless the county commissioners shall authorize a 
crossing at the same level as provided in section ninety) 
(five) it shall be constructed so as to pass either over or 
under the way, as prescribed in the next section, and con- 
formably to any decree which may be made by the county 
commissioners under section eighty-eight (three) . 

2. If the railroad is constructed to pass over the way, a 
sufficient space shall be left under the railroad conveniently 
to accommodate the travel on the way. If the railroad is 
constructed to pass under the way, the railroad corporation 
shall build such bridges, with their abutments and suitable 
approaches thereto, as will accommodate the travel upon 
the way : provided, that no bridge for any purpose shall 
hereafter be constructed over any railroad at a height less 
than eighteen feet above the track of such railroad, except 
by the consent in writing of the board of railroad com- 
missioners. 

3. A railroad corporation may raise or lower any high- 
way or other way, for the purpose of having its road pass 
over or under the same ; but before proceeding to cross, 
alter, or excavate, for the purpose of crossing the way, it 
shall obtain from the county commissioners a decree pre- 
scribing what alterations may be made in the way, and the 
manner and time of making the alterations or structures 
the commissioners may require at the crossing ; and before 
entering upon, excavating, or altering the wa}', shall give 
security, satisfactory to the commissioners, to the city or 
town in which the crossing is situated, that it will faithfully 



RAILROADS CROSSING HIGHWAYS, ETC. 251 

comply with the requirements of the decree to the accept- 
ance of the commissioners, and indemnify the city or town 
from all damages and charges by reason of any failure so 
to do. 

4. A railroad corporation may alter the course of a high- 
way or other way for the purpose of facilitating the cross- 
ing of the same by its road, or permitting its road to pass 
at the side thereof without crossing, upon obtaining a 
decree of the county commissioners prescribing the manner 
and time of such alteration. Before granting the decree, 
the commissioners, after due notice to the city or town in 
which the way is situated, shall decide that the alteration 
will not essentially injure the way. The corporation shall 
pay all damages occasioned to private property by the 
alteration, as in case of land taken for its road. 

5. When a railroad is laid out across a highway or other 
way, the county commissioners, upon the application of 
the railroad corporation, or of the mayor and aldermen or 
selectmen of the city or town in which the crossing is situ- 
ated, after due notice to all parties interested, and after 
hearing the parties, may adjudge that public necessity re- 
quires the crossing at the same level, and may make a 
decree to specially authorize and require the corporation so 
to construct its road, in such manner as shall be prescribed 
in the decree ; and said commissioners may modify the 
terms of such decree, or revoke the same, at any time 
before the construction of the railroad at such crossing. 

No highway or town way shall hereafter be laid out across a rail- 
road at a level therewith, nor shall any railroad be laid out and con- 
structed across a highway or town way at a level therewith, without 
the consent in writing of the board of railroad commissioners in addi- 
tion to the authority of the county commissioners as now required. 1 

6. A railroad corporation whose road is crossed by a 
highway or other way on a level therewith shall, at its own 
expense, so guard or protect its rails by plank, timber, or 
otherwise, as to secure a safe and easy passage across its 
road ; and if, in the opinion of the county commissioners, 

1 Stats. 1876, ch. 73. 



252 TOWN AND PARISH OFFICER. 

any subsequent alteration of the highway or other way, 
or any additional safeguards, are required at the crossing, 
they may order the corporation to establish the same as 
provided in section eighty-eight (three). 

7. A highway or town way may be laid out across a 
railroad previously constructed when the county commis- 
sioners adjudge that the public convenience and necessity 
require the same ; and in such case, after due notice to the 
railroad corporation, and hearing all parties interested, 
they may thus lay out a highway across a railroad, or may 
authorize a city or town, on petition of the maj'or and 
aldermen or selectmen thereof, to lay out a way across a 
railroad, in such manner as not to injure or obstruct the 
railroad, and otherwise in conformity with the provisions 
of sections eighty-six and eighty-seven (one and two) ; 
but not permitting it to cross at a level with the railroad, 
unless public necessity so requires, in which case they may 
give special authority for such crossing, as provided in 
section ninet}^ (five). 

8. If, upon application to the county commissioners by 
the ma} T or and aldermen or selectmen of any city or town, 
it appears that a railroad corporation crosses with its road 
a highway or other way therein, so as to cause an obstruc- 
tion thereto, contrary to the provisions of section eighty- 
six (one), or of any decree of the county commissioners 
made under section eighty-eight (three) ; or that it refuses 
or neglects to keep in proper repair any bridge or other 
structure required or necessary at such crossing, the com- 
missioners, after due notice to the corporation, may pass 
a decree prescribing what repairs shall be made by the 
corporation at the crossing, and the time within which they 
shall be made, and shall order the corporation to pay the 
costs of the application. They ma} r further order the 
corporation to give security, as provided in section eighty- 
eight (three) , for the faithful performance of the require- 
ments of the decree and the indemnity of said city or town 
upon any failure in such performance. 

9. Every railroad corporation shall, at its own expense, 



RAILROADS CROSSING HIGHWAYS, ETC. 253 

construct, and afterwards maintain and keep in repair, all 
bridges, with their approaches or abutments, which it is 
authorized or required to construct over or under any turn- 
pike road, canal, highway, or other way ; and any city or 
town may recover of the railroad corporation whose road 
crosses a highw r ay or town way therein all damages, 
charges, and expenses incurred by such city or town by 
reason of the neglect or refusal of the corporation to erect 
or keep in repair all structures required or necessaiy at 
such crossing ; but if, after the laying out and making of a 
railroad, the county commissioners have authorized a turn- 
pike, highwa} T , or other way to be laid out across the rail- 
road, all expenses of and incident to constructing and 
maintaining the turnpike or way at such crossing shall be 
borne by the turnpike corporation, or the county, city, town, 
or other owner of the same ; until or unless, in either case, 
it shall be otherwise determined by an award of a special 
commission, as provided in the four following sections. 

10. If the mayor and aldermen of a city, or the select- 
men of a town, wherein a highway or town way which 
crosses or is crossed by a railroad is situated, or the 
directors of any railroad corporation whose road crosses or 
is crossed b} r such way, are of the opinion that it is neces- 
sary for the security or convenience of the public that any 
alteration should be made in such crossing, or in the 
approaches thereto, or in the method of such crossing, or 
in the location of the railroad or in the location of the 
highway or town way, or in any bridge at such crossing, 
the county commissioners shall, when, after due notice and 
hearing of all parties interested, they decide that such 
alteration is necessary, prescribe the manner and limits 
within which it shall be made, and forthwith certify their 
decision in the matter to the parties, and also to the board 
of railroad commissioners ; and, when the county commis- 
sioners decide that no alteration is necessary, the party 
making the application shall pay the costs thereof. 

11. If, under the provisions of the preceding section, the 
county commissioners decide that the location of the rail- 



254 TOWN AND PARISH OFFICER. 

road or of the highway or town way shall be changed, land 
or other property may be taken therefor, according to the 
j)rovisions of law ; and all damages occasioned by such 
taking shall be assessed according to the provisions of the 
laws which now are or hereafter may be in force regulating 
the taking of land by railroad corporations, or the taking 
of land for highways and town ways, as the case may be. 

12. The party by whom such decision shall be carried 
into effect shall be determined by the award of a special 
commission of three disinterested persons, to be appointed 
as provided in the next section ; and the said special com- 
mission shall also determine by what party all charges 
and expenses occasioned b}' making such alteration, and 
all future charges for keeping in repair such crossing and 
the approaches thereto, as well as all costs of the applica- 
tion to the county commissioners, or of the hearing before 
said special commission, shall be borne ; or said special 
commission may apportion all such charges, expenses, or 
costs between the railroad corporation and the town, city, 
or county in which said crossing is situated ; and the 
supreme judicial court shall have jurisdiction in equity to 
compel compliance with all orders, decrees, and judgments 
of said special commission. 

13. The members of such special commission shall be 
named within thirty days after the decision that an altera- 
tion is necessary, in the following manner : one of them 
shall be named by the county commissioners, if the way 
that crosses or is crossed by the railroad is a highway, or 
by the selectmen or mayor and aldermen if it is a town way ; 
one by the railroad corporation interested ; and the third 
shall be a member of the board of railroad commissioners 
designated by said board ; and if the town, city, county, 
or railroad corporation does not name a member within 
thirty days after decision aforesaid, the board of railroad 
commissioners shall name a member in its behalf. The 
commission shall meet as soon as may be after the several 
members are named, and in any case within sixty days 
after the decision aforesaid. 



RAILROADS CROSSING HIGHWAYS, ETC. 255 

14. Any award made under the provisions of section 
ninety-eight shall be filed in the office of the board of rail- 
road commissioners, and the same shall be final, unless 
some party affected thereby, within thirty days of the ren- 
dering of such award, requests in writing the commission 
established by said section to return said award into the 
supreme judicial court for the county in which the crossing 
is situated ; and, upon such request, said commission shall 
so return said award, which shall be subject to revision in 
the same manner as if said commission had derived its 
power to act in the premises under the appointment of 
said court ; and said award, when accepted by said court, 
shall be final. 

15. When the, party designated for that duty by the 
award of the special commission has carried into effect the 
decision of the county commissioners agreeably to said 
award, such party may recover of any other party, in an 
action of contract, the proportion awarded to be paid by 
such other party, with interest ; and if the party so 
designated by the award unreasonably neglects or refuses 
to cany the decision into effect, any other party affected 
by such neglect or refusal may proceed to do it ; and, in 
an action of tort against any or all of the others, may 
recover from each the proportion awarded to be paid by it ; 
and from the party neglecting or refusing, all charges, 
expenses, and costs occasioned thereby. 

16. The original jurisdiction of all questions touching 
obstructions to turnpikes, highways, or town wa} T s, caused 
b} r the construction or operation of railroads, shall be 
vested in the county commissioners within their respective 
jurisdictions. 

17. The supreme judicial court shall have jurisdiction 
in equity, and may compel railroad corporations to raise 
or lower any turnpike, highway, or town way, when the 
county commissioners have decided, in due and legal form, 
that such raising or lowering is necessary for the security 
of the public ; and to comply with the orders, decrees, and 
judgments of county commissioners in all cases touching 



256 TOWN AND PARISH OFFICER. 

obstructions to such ways by railroads. And if it is made 
to appear to the supreme judicial court, or any justice 
thereof, in term time or vacation, upon the petition of the 
mayor and aldermen or selectmen of any place, that a cor- 
poration has excavated or altered a highway or town way 
without obtaining the decree and giving the security re- 
quired by section eighty-eight (three) , or has neglected for 
fifteen days to give security as required by section ninety- 
four, the court or justice may, by injunction or other 
suitable process according to the practice of courts of 
equity, restrain and prohibit the corporation from entering 
upon, altering, excavating, or crossing the way until such 
decree is obtained or the security given. 

18. Every railroad corporation shall cause a bell, of at 
least thirty-five pounds in weight, and a steam- whistle, to 
be placed on each locomotive engine passing upon its road ; 
and such bell shall be rung or such whistle sounded at the 
distance of at least eighty rods from the place where the 
road crosses upon the same level a turnpike, highway, 
town way, or travelled place, over which a signboard is 
required to be maintained, as provided in the next two 
sections ; and such bell shall be rung or such whistle 
sounded, either one or the other, continuously or alter- 
nately, until the engine has crossed such turnpike, way, or 
travelled place. 

19. Every railroad corporation shall cause boards, well 
supported by posts or otherwise, to be placed and con- 
stantly maintained across each turnpike, highway, or town 
way, where it is crossed by the railroad at the same level ; 
said posts and boards shall be of such height as to be 
easily seen by travellers, without obstructing the travel ; 
and on each side of the boards the following inscription 
shall be printed in capital letters of at least the size of nine 
inches each: "Railroad Crossing — Look out for the 
Engine." When a gate or a flagman is maintained at such 
crossing, as provided in section one hundred and twenty- 
six, the corporation may substitute, in place of such posts 
and boards, warning boards on each side of the crossing, 



RAILROADS CROSSING HIGHWAYS, ETC. 257 

of such form, size, and description as the board of railroad 
commissioners shall approve. 

20. If the mayor and aldermen or selectmen of a city 
or town wherein a travelled place is crossed by a railroad 
at the same level decide that it is necessary for the better 
security of the public that sign-boards such as are described 
in the preceding section should be maintained at such 
travelled place, they may in writing request the corporation 
owning the railroad to erect and maintain them. If the 
corporation neglects or refuses so to do,' the mayor and 
aldermen or selectmen may apply to the county commis- 
sioners to decide upon the reasonableness of their requests. 
If the commissioners, after due notice and hearing of the 
parties, decide that such erection is necessary for the •bet- 
ter securhy of the public, the corporation shall comply 
with their decision, and pay the costs of the application. 
If they decide that it is not so necessary, one half of the 
costs of the application shall be paid by the city or town, 
and one half by the corporation. 

21. If the mayor and aldermen or selectmen of any city 
or town in which a turnpike, highway, town way, or trav- 
elled place is crossed by a railroad at the same level, should 
be of opinion that it is necessary for the better security 
of the public that gates should be erected across such 
turnpike, highway, town way, or travelled place, and that 
an agent be stationed to open and close such gates when 
an engine or train passes, or that bars be erected instead 
of gates, or that a flagman be stationed at the crossing, 
who shall display a flag whenever an engine or a train 
passes, such maj^or and aldermen or selectmen may in 
writing request the railroad corporation to erect and main- 
tain gates, and station an agent thereat : or to erect bars ; 
or to station a flagman at the crossing. If the corporation 
refuses, or neglects to comply with the request, the mayor 
and aldermen or the selectmen may apply to the county 
commissioners. Upon such application, or at any time, 
upon the petition of an} r party, after due notice and hear- 
ing, the commissioners may make such orders for the 

17 



258 TOWN AND PARISH OFFICER. 

erection and maintenance of gates or bars, or the stationing 
of an agent or flagman, or such alteration of arrangements 
already existing at the crossing, as said commissioners 
shall decide the better security of human life or the con- 
venience of the public travel require, and may further make 
such order as to costs as justice may require ; and the 
railroad corporation shall comply with all such orders of 
the county commissioners, whether made before the railroad 
is constructed and opened for use, or from time to time 
afterwards. 

22. No railroad corporation, nor its servants or agents, 
shall wilfully or negligently obstruct, or unnecessarily or 
unreasonably use or occupy a highway, town way, or 
street ; nor in any case with cars or engines, for more than 
five minutes at one time ; and whenever a highway, town 
wa} r , or street has been thus used or occupied with cars or 
engines, no railroad corporation shall again use or occupy 
the same with the cars or engines of a freight train, until a 
sufficient time, not less than three minutes, has allowed the 
passage across the railroad of such travellers as were ready 
and waiting to cross when the former occupation ceased. 
For any violation of the provisions of this section, the cor- 
poration shall forfeit the sum of one hundred dollars. 

23. The selectmen of any town, or the mayor and alder- 
men of any city, may, upon the petition of any railroad cor- 
poration having a passenger station within the limits of such 
town or city, appoint as many as they may deem proper of 
the persons in the employ of said corporation police officers, 
to act as railroad police for the purposes and with the powers 
hereinafter set forth. A copy of the record of the appoint- 
ment of any railroad police officer shall be filed by the clerk 
of the corporation upon whose petition such order is made, 
with the clerk of each town or city through or into which 
such railroad extends, and in which it is intended that such 
police shall act ; and the filing of such order shall constitute 
the persons named therein railroad police within such towns 
or cities. Such police officers shall hold their offices during 
the pleasure of the selectmen or mayor and aldermen by 



RAILROADS CROSSING HIGHWAYS, ETC. 259 

whom they are appointed : provided, that when any corpo- 
ration shall cease to require the services of any of the 
railroad police appointed upon its petition, it may file a 
notice to that effect in the several offices in which notice 
of such appointment was originally filed ; and thereupon 
the power of said officer shall cease. 

24. Whenever a railroad corporation has established 
and maintained throughout the year for five consecutive 
years a passenger station at any point upon its road, such 
station shall not be abandoned, nor shall the accommoda- 
tion furnished by the stopping of trains thereat be sub- 
stantially diminished as compared with that furnished at 
other stations on the same road ; and, in case of any vio- 
lation of the provisions of this section, it shall be the duty 
of the attorney-general, at the relation of ten legal voters 
of the town or city in which said station is located, to pro- 
ceed in equity by information to enjoin said corporation 
from further violation thereof. 

25. Railroad corporations may re-locate passenger sta- 
tions and freight depots upon the approval in writing of the 
board of railroad commissioners, and of the selectmen of 
the town or the city council of the city in which such sta- 
tions or depots are situated. 

26. No private track shall be constructed across or upon 
a highway, town way, or travelled place, except with the 
consent of the mayor and aldermen or selectmen of the 
city or town, and in a place and manner approved by 
them. If said mayor and aldermen or selectmen consent, 
they shall make from time to time such regulations in re- 
gard to the motive power to be employed, the rate of speed 
to be run, and time and manner of using the track over 
and upon such way or travelled place as in their judgment 
the public safety and convenience require, and they may 
order such changes to be made in the track as are rendered 
necessary by the alteration or repair of such way. If 
they allow steam power to be used on such track, the pro- 
visions of this act relating to the crossing of ways and 
travelled places by railroad corporations shall apply to 



260 TOWN AND PARISH OFFICER. 






such track, and the person or corporation by whom the 
same was constructed. 

27. The directors (of a railroad corporation organized 
under statutes of 1874, ch. 372) shall prepare a map of the 
proposed route on an appropriate scale, with a profile 
thereof on a vertical scale of ten to one as compared with 
the horizontal scale ; and with the report of a skilful engi- 
neer, based on actual examination and survey, showing the 
kind and amount of excavation, filling, bridging and ma- 
sonry required, the proposed grades, the number of high- 
ways and other railroads, if any, and of navigable streams 
and tide- waters, if any, to be crossed, and the manner 
proposed for crossing the same, which must be conform- 
able to the provisions of section eighty-five, the general 
profile of the surface of the country through which the 
road will pass, the feasibility of the route, the manner of 
constructing the road, and a detailed estimate of the cost 
of construction. 

28. The directors shall submit said map and report of 
the engineer to the selectmen of an}^ town and the ma} r or 
and aldermen of any city named in the articles of associa- 
tion ; such selectmen or ma} T or and aldermen shall there- 
upon appoint a place and time for a hearing, of which 
notice shall be given by publication in one or- more news- 
papers published in the county for two successive weeks, 
the last publication to be at least two da}^s prior to the 
hearing, and by posting copies of the notice in at least two 
public places in the town or city, at least two weeks before 
such hearing. 

29. Whenever the selectmen of any town or the ma}'or 
and aldermen of any city named in the articles of associa- 
tion, after such notice, exhibition of the map, and hearing, 
shall agree with the directors as to the proposed route, or 
any route of their railroad in said town or chVy, such agree- 
ment shall be sufficient to fix the same ; and said select- 
men or mayor and aldermen shall sign and give to the 
directors a certificate setting forth the route* so fixed. 

30. Whenever the directors fail to agree with the select- 



RAILROADS CROSSING HIGHWAYS, ETC. 261 

men of any town or the mayor and aldermen of an} T city as 
to the route of their railroad in such town or city, said 
directors may petition the board of railroad commissioners 
to fix the route in said town or cit}% who, after due notice 
to said selectmen or mayor and aldermen, shall hear the 
parties, and fix the route in such town or city. Such 
board shall make a certificate setting forth the route as 
fixed by them ; and the same shall be certified by the clerk 
of said board to the directors. The costs of the petition 
shall be paid by the directors. All variations from the 
route first proposed shall be made upon the map. 

31. The route of a railroad fixed under the two preceding 
sections may include such spurs and branches and connect- 
ing and terminal tracks in any city or town as may be neces- 
sary to enable the corporation to conveniently collect and 
deliver passengers and freight in such city or town ; but 
no such branch, spur, or connecting or terminal track shall 
be laid longitudinally within the limits of a public way 
without the consent of the mayor and aldermen, or the 
selectmen, and in giving such consent they may impose 
such conditions as to the location, construction, and use 
thereof as may be agreed upon between themselves and 
the directors ; and the corporations owning or operating 
any such tracks^ so laid longitudinally in a public way, 
shall, in respect to the same, be liable to the city or town 
in which the same are laid, for all loss or damage caused 
thereto by the construction and use of such tracks, and 
by the negligence or default of their agents or workmen 
thereon. 

32. When the owner of land througji which a railroad, 
constructed prior to the seventeenth day of April in the 
year eighteen hundred and forty-one, passes, has not re- 
ceived all damages assessed to him, or has not agreed to 
maintain suitable fences upon such road, upon the appli- 
cation of the owner, or of the mayor and aldermen or 
selectmen of the city or town, the count}' commissioners 
may require the corporation to make and maintain fences 
suitable for the benefit and security of the land-owner and 
of travellers upon the road. 



262 TOWN AND PARISH OFFICER. 

33. Every railroad corporation shall erect and maintain 
suitable fences, with convenient bars, gates, or openings 
therein, at such places as may reasonably be required, 
upon both sides of the entire length of any railroad which 
it shall have constructed subsequently to the sixteenth day 
of May in the } T ear eighteen hundred and forty-six, except 
at the crossings of a turnpike, highwa} 7 , or other way, or 
in places where a convenient use of the road would be 
thereby obstructed ; and shall also construct and maintain 
sufficient barriers at such places as may be necessary, 
where it is practicable to do so, to prevent the entrance of 
cattle upon the road. A corporation unreasonably neg- 
lecting to comply with the provisions of this section shall, 
for every such neglect, forfeit a sum not exceeding two 
hundred dollars for every month during which the neglect 
continues ; and the supreme judicial court, or any justice 
thereof, either in term time or vacation, may, by injunction 
or other suitable process in equity, compel the corporation 
to comply with such provisions ; and, upon such neglect, 
may restrain and prohibit the corporation from crossing 
any turnpike, highway, or town way, or using any land, 
until said provisions are complied with. 

34. A railroad corporation, having taken land for its 
road, may vary the direction of the road in> the place where 
such land is situated ; but it shall not locate any part 
thereof without the limits of the route fixed agreeably to 
sections twenty-five and twenty-six of this act, 1 unless 
with the consent in writing of the mayor and aldermen or 
selectmen, if it was fixed under section twenty-five, or of 
the railroad commissioners, if it was fixed under section 
twenty-six. The corporation shall, before the expiration 
of the time required for completing the road, file with the 
county commissioners the location of the different parts 
where such variations are made ; and the time for complet- 
ing the road shall not be extended in consequence of such 
variations. 

35. Upon the complaint and application of the selectmen of any 
town within which any part of any railroad is located, it shall be the 

1 Sections 29 and 30 of this chapter. 



RAILROADS CROSSING HIGHWAYS, ETC. 263 

duty of the railroad commissioners to make an examination of the 
condition and operation thereof ; and if twenty or more legal voters 
in any town shall, by petition in writing, request the selectmen of 
such town to make the said complaint and application, and the se- 
lectmen refuse or decline to comply with the petition, they shall 
indorse upon the petition the reason of such non-compliance, and 
return it to the petitioners ; and the petitioners may thereupon, within 
ten days of such refusal and return, present the petition to said com- 
missioners ; and said commissioners shall, if upon due inquiry and 
hearing of the petitioners they think the public good demands the 
examination, proceed to make it in the same manner as if called 
upon by the selectmen of any town. Before proceeding to make 
such examination in accordance with such application or petition, 
said commissioners shall give to the petitioners and the corporation 
reasonable notice in writing of the time and place of entering upon 
the same. If upon such examination it shall appear to said commis- 
sioners that the complaint alleged by the applicants or petitioners is 
well founded, they shall so adjudge, and shall inform the corporation 
operating such railroad of their adjudication, in the same manner as 
is provided in section nine. 1 

i Stats. 1874, ch. 372. 



264 TOWN AND PARISH OFFICER. 



CHAPTER XXVII. 

CONSTRUCTION OF ROADS TO SWAMPS, MINES, ETC. 

1. Any town, city, person, company, or body corporate, 
having the ownership of low lands, lakes, swamps, quar- 
ries, mines, or mineral deposits, that on account of adja- 
cent lands belonging to other persons, or occupied as a 
highway, cannot be approached, worked, drained, or used, 
in the ordinary manner, without crossing such lands or 
highway, may be authorized to establish roads, drains, 
ditches, tunnels, and railway, to such places, in the man- 
ner hereinafter provided. 

2. The party desiring to make such improvements shall 
file a petition therefor with the county commissioners 
within whose jurisdiction the premises are situated, setting 
forth the names of the persons interested, if known to the 
petitioner, and also, in detail, the nature of the proposed 
improvement and the situation of the adjoining lands ; 
which petition shall be accompanied with a bond, satisfac- 
tory to said commissioners, for the payment of expenses 
incurred in the prosecution of the application. 

3. The commissioners at their first meeting after the fil- 
ing of the petition and bond, shall give at least three weeks' 
public notice of the time and place of meeting to consider 
the petition, in some newspaper printed in the county ; and 
if there is no such paper, in a newspaper printed in an ad- 
jacent county ; they shall further give notice to the mayor 
of any city and the clerk of any town in which the premi- 
ses are situated. 

4. They shall meet at the time and place appointed, and 
after examination, inspection, and the hearing of evidence, 
shall determine whether the improvement prayed for is 



CONSTRUCTION OP ROADS TO SWAMPS, ETC. 265 

necessary, and if so, shall proceed to lay out and estab- 
lish the same in such manner as shall do as little injury as 
practicable ; and shall assess the amount of damages which 
in their opinion the proprietor of the adjacent lands will 
sustain. They shall apportion the damages equitably 
among all parties to be benefited, having regard to the 
benefits each will receive ; and such award shall be deemed 
conclusive upon each of the parties charged with such pay- 
ment, unless an appeal is taken within the period of one 
year. 1 

5. But the commissioners have no power to authorize an owner 
of marshy or wet land to dig a ditch into his neighbor's land, and 
discharge the water upon the same to his injury, but only to author- 
ize him to dig a ditch across the same, or to some outlet where the 
water may be discharged without injury. 2 

6. Any party aggrieved by the award may appeal there- 
from, and thereupon like proceedings shall be had as are 
provided in chapter forty- three, for persons aggrieved in 
the laying out of highways. 

7. When it is necessary to repair an} 7 improvement thus 
constructed, a majority of the persons benefited by it may 
cause such repairs to be made, and compel contributions 
from each person benefited, on the basis of the award. 

8. When the premises mentioned in section (one) are 
situated entirely in one town or city, the petition may be 
made to the selectmen or mayor and aldermen thereof, who 
shall proceed thereon in all respects as above provided for 
county commissioners upon such petitions, except that they 
need not give notice to their town or eity. 

9. The petition under the preceding section shall be filed 
in the office of the town or city clerk before proceedings 
are had thereon ; and together with the order or award 
thereon shall be recorded in said office within two months 
after the same is made. 

10. The selectmen or mayor and aldermen shall each 
receive for services upon such petitions two dollars a 
day, and the clerk shall receive for recording petitions 

i Gen. Stats, ch. 148, §§ 19-22. 2 Sherman v. Tobey, 3 Allen, 7. 



266 TOWN AND PARISH OFFICER. 

and orders the same fees as for mortgages of personal 
property. 

11. A party aggrieved by any order, award, or refusal of 
the selectmen or mayor and aldermen herein, may complain 
to the count}^ commissioners at any meeting held within 
one year thereafter ; and the commissioners may there- 
upon proceed in all respects as though the petition were 
originally made to them. 1 

1 Gen. Stats, ch. 148, §§ 23-28. 



DEDICATION OF WAYS, ETC. 267 



CHAPTER XXVIIL 

DEDICATION OF WAYS, ASCERTAINING LOCATION, 
ERECTION OF MONUMENTS, AND WAYS OYER BURY- 
ING-GROUNDS. 

1. No way opened and dedicated to the public use, which 
has not become a public way, shall be chargeable upon 
a city or town as a highway or town way, unless the same 
is laid out and established by such city or town in the 
manner prescribed by the statutes of the commonwealth. 

2. The mayor and aldermen and selectmen shall, when- 
ever the public safety demands it, direct and cause the 
entrances of such ways entering on and uniting with an 
existing public highway, to be closed up ; or may by other 
sufficient means caution the public against entering upon 
such ways ; and if any such way shall not be closed, or 
sufficient notice given that the same is dangerous, the city 
or town shall be liable for damages arising from defects 
therein in the same manner as if it had been duly laid out 
and established. 

3. In cities in which the city council, and in towns in 
which the inhabitants at a legal meeting, have accepted 
the provisions of this and the two following sections, if a 
street or way has been or shall be opened over private land 
by the owner thereof, and permitted to be used by the 
public before the same has been accepted and laid out 
according to law, the owners of the lots abutting thereon 
shall grade such street or way at their own expense, in 
such manner as the safety and convenience of the public 
shall in the opinion of the maj^or and aldermen or select- 
men require. If the owners of such abutting lots, after 
reasonable notice from the mayor and aldermen or select- 
men, neglect or refuse so to do, or to close the street from 
public use, the mayor and aldermen or selectmen may 



268 TOWN AND PARISH OFFICER. 

cause the same to be graded, and after due notice to the 
parties interested shall assess the expense thereof upon the 
owners in such proportion as shall be judged reasonable. 
All assessments so made shall be a lien upon the abutting 
lands in the same manner as taxes are a lien upon real 
estate. 

4. The msijor and aldermen or selectmen may fix and 
establish the grade of a street or wa} r so opened and used, 
and cause a plan of such grade to be deposited in the office 
of the city or town clerk. And all persons making im- 
provements upon the lots abutting thereon, after the grade 
has been established and recorded, shall conform to the 
grade. But nothing contained in this and the preceding 
section shall affect any agreements heretofore made respect- 
ing such streets or ways, between the owners of lots and 
the city or town. 

5. The grading of such street or way by the owners of 
the land, in pursuance of the notice by the mayor and alder- 
men or selectmen, shall not be construed to be a dedication 
of the same to the public use, nor shall the establishment 
and record of the grade, or the grading thereof by the 
mayor and aldermen or selectmen, constitute an accept- 
ance of the same by the city or town. But no such street 
or way shall be dug up or obstructed without the consent 
of the mayor and aldermen or selectmen. 1 

6. The statute which is the basis of and comprises the three pre- 
ceding sections, has been declared unconstitutional and void by the 
supreme judicial court. 2 

7. When ten or more freeholders represent to the mayor 
and aldermen of a city or selectmen of a town, that the 
exact location of a street, road, or way, over which they 
have jurisdiction, cannot readily be ascertained, they shall 
make investigation thereof, and if it appears that the repre- 
sentation is correct, shall, after giving the notice required 
in laying out a similar road or way, proceed to ascertain 
the correct location, erect the necessary bounds, and file 

i Gen. Stats, ch. 43, §§ 82-86. 2 Morse v. Stocker, 1 Allen, 150. 



DEDICATION OF WAYS, ETC. 269 

a certificate thereof, for record, as provided in sections 
seventj'-four and eighty-eight. 

8. The county commissioners, maj'or and aldermen, and 
selectmen, shall cause permanent stone bounds not less 
than three feet long, two feet of which at least shall be in- 
serted in the earth, to be erected at the termini and angles 
of all roads laid out by them, when practicable ; and when 
not so, a heap of stones, a living tree, a permanent rock, 
or the corner of an edifice may be a substitute for such 
stones; or said bounds may be permanent stone bounds 
not less than three feet long, with holes drilled therein, and 
filled with lead, placed a few inches below the travelled 
part of the street or way, as the officer whose duty it is to 
cause the same [to be] erected may determine. And if 
they neglect to establish such monuments after being noti- 
fied so to do by an owner of land through which an}' such 
way is laid out (since the twenty-fifth of April, eighteen 
hundred and forty-eight) the county if it be a count} r road, 
and the city or town if it be a city or town road, shall pay 
to the owner of the land the sum of fifty dollars for each 
month that such neglect continues, to be recovered in an 
action of tort. 1 

9. A notice to the chairman of the county commissioners is not 
sufficient under the statute to charge the county with the penalty im- 
posed by that statute for the neglect of the county commissioners to 
erect bounds at the termination and angles of a county road for one 
month after being notified so to do by the owner of the land. 2 

10. No highway or town way shall be laid out or con- 
structed in, upon, or through, an enclosure used or appro- 
priated for the burial of the dead, unless authority to that 
effect is specially granted by law, or the consent of the in- 
habitants of the town where such enclosure is situated is 
first obtained. 

11. No highway or town way shall be laid out or con- 
structed in, upon, or through, such part of an enclosure 
belonging to private proprietors, as may be used or appro- 

1 Gen. Stats, ch. 43, §§ 87, 88. 2 flsley et al. v. Essex County, 7 

Gray, 465. 



270 TOWN AND PARISH OFFICER. 

priated to the burial of the dead, unless the consent of 
such proprietors is first obtained therefor. 1 

12. Towns and cities, by their proper officers, may lay 
out foot-ways for the use of the public in their respective 
towns and cities. All proceedings in reference to laying 
out and establishing such foot- ways, the acceptance there- 
of, and the assessment and award of damages sustained by 
any person in his propert} 7 , shall be in conformity with the 
provisions of law applicable to the laying out and estab- 
lishing of town ways. 2 

1 Gen. Stats, ch. 43, §§ 89, 90. ways may be created by dedication. 

2 Stats. 1874, ch. 299. Public foot- Tyler v. Sturdy, 108 Mass. 196. 



SEWERS AND DRAINS. 271 



CHAPTER XXIX. 
SEWERS AND DRAINS. 

1. In any city or town in which chapter one hundred 
and fifteen of the statutes of eighteen hundred and forty- 
one has been accepted according to the provisions of that 
act, and in any city in which this and the three following 
sections of this chapter (sections five, six, and seven be- 
low) have been accepted by the city council, and in any 
town in which the same have been accepted by the legal 
voters at a meeting called for that purpose, the mayor and 
aldermen of the city and the selectmen of the town may lay, 
make, maintain, and repair, all main drains or common 
sewers ; and all the main drains or common sewers shall be 
the property of such city or town. 1 

This section has been repealed, except as to rights and obligations 
accrued before March 26, 1869. 2 

2. The mayor and aldermen of any city, and the select- 
men of any town, may lay, make, and maintain all such 
main drains, or common sewers, as they shall adjudge to 
be necessar} T for the public convenience or the public health, 
through the lands of any persons or corporations, and may 
repair the same from time to time, whenever repair thereof 
shall be necessary ; and all main drains and common 
sewers so laid, shall be the property of the city or town 
laying the same. 

3. When any lands or real estate shall be taken by 
virtue of this act, the proceedings in the several cities shall 
be the same, in all respects, as in the laying out of high- 
ways or streets in such cities respectively ; and the pro- 

i Gen. Stats, ch. 48, § 3. 2 stats. 1869, ch. 111. 



272 TOWN AND PARISH OFFICER. 

ceedings in the several towns shall be the same in all 
respects as in the la}~ing out of town ways. 

4. All persons or corporations suffering damage in their 
property, by reason of the laying, making, or maintaining 
of any main drains or common sewers, shall have the same 
rights and remedies for ascertaining and recovering the 
amount of such damage, in the several cities, as in the case 
of the laying out of highways or streets in such cities re- 
spectively, and in the several towns, as in the case of 
laying out of town ways. 1 

5. Every person w T ho enters his particular drain into 
such main drain or common sewer, or who, b}^ more re- 
mote means, receives benefit thereby for draining his cellar 
or land, shall pay to the city or town a proportional part 
of the charge of making and repairing the same (and of the 
charge, not already assessed, of making and repairing other 
main drains and common sewers, through which the same 
discharges) , 2 to be ascertained, assessed, and certified by 
the mayor and aldermen or selectmen, and notice thereof 
shall be given to the party to be charged, or his tenant or 
lessee. 

6. Assessments so made shall constitute a lien on the 
real estates assessed for one year after they are laid, and 
may, together with incidental costs and expenses, be levied 
by sale thereof, if the assessment is not paid within three 
months after a written demand for payment, made either 
upon the person assessed or upon any person occupj'ing the 
estate ; such sale to be conducted in like manner as sales 
for the non-payment of taxes. 

7. A person aggrieved by such assessment may, at an} r 
time within three months from receiving notice thereof, 
apply for a jury. Such application shall be made in like 
manner, and the proceedings thereon shall be the same as 
in case of lands taken for laying out of highways : provided 
that, before making his application the party shall give one 
month's notice in writing to the selectmen or mayor and 
aldermen of his intention so to apply, and shall therein 

i Stats. 1869, ch. Ill, §§ 1-3. 2 stats. 1878, ch. 232. 



SEWERS AND DRAINS. ' 273 

particularly specify his objections to the assessment made 
by them ; to which specification he shall be confined upon 
the hearing b} T the jury. 

8. Nothing herein contained shall prevent a city or town 
from providing, by ordinance or otherwise, that a part of 
the expense of constructing, maintaining, and repairing, 
main drains or common sewers, shall be paid by such city 
or town. And in the city of Boston, not less than one- 
quarter part of such expense shall be paid by the city, and 
shall not be charged upon those using the main drains or 
common sewers. 

9. Whoever digs or breaks up the ground in a highway, 
street, or. lane, in any town, for the laying, altering, or re- 
pairing of a drain or common sewer, without the consent 
of the selectmen in writing, shall forfeit five dollars for 
each offence to the use of the town. 

10. All drains and common sewers in a street or high- 
way shall be substantially made or repaired with brick or 
stone, or with such other materials, and in such manner, as 
the selectmen of the town shall permit or direct. 

11. When a person, by the consent and under the direc- 
tion of the selectmen, at his own charge, makes and lays 
a common sewer or main drain for the benefit of himself 
and others who think fit to join therein, every person who 
afterwards enters his particular drain into the same, or by 
any more remote means receives benefit thereby for the 
draining of his cellar or land, shall pa} T to the owners of 
such common sewer or main drain, a proportional part of 
the charge of making and repairing the same, to be deter- 
mined by the selectmen of the town, and certified under 
their hands ; saving always to the party aggrieved by any 
such determination the right to a trial by jury, as provided 
in section six (section seven above) . 

12. When a common sewer or main drain is stopped or 
gone to decay, so that it is necessary to open the same in 
order to repair it or to remove such stoppage, all persons 
benefited by such repair or removal of obstructions, as well 
those who do not as those who do cause such repairs to 

18 



274 TOWN AND PARISH OFFICER. 

be made or obstruction to be removed, shall pay to the per- 
son incurring the expense their proportional parts thereof, 
to be determined as provided in the preceding section. 

13. Every person so required to pay his proportional 
part of the expense of making or repairing a drain or com- 
mon sewer, shall have notice of the sum and of the person 
to whom the same is to be paid ; and if he does not, within 
seven da} r s after such notice, pay the same to the person 
authorized by the selectmen to receive it, he shall be held 
to pay double the amount certified by the selectmen as 
aforesaid, with all expenses arising upon such neglect ; 
and the person so authorized by the selectmen may recover 
the same in an action of contract in his own name. 

14. Whoever has occasion to open a common sewer or 
main drain in order to clear and repair the same, shall, 
seven days at least before he begins to open the same, give 
notice to all parties interested, by advertising in such man- 
ner as the selectmen may direct, that such parties may, 
if they think proper, object thereto and state their objec- 
tions in person or in writing to the selectmen ; and if the 
selectmen judge the objections reasonable, the parties 
making the same shall not be held to pay any part of 
such expenses ; but if they do not make their objections 
to the selectmen within three da} r s after such notice, or if 
the objections are not adjudged reasonable, the selectmen 
shall, in writing under their hands, give liberty to the per- 
sons applying to open such common sewer or main drain, 
and to clear and repair the same ; and all persons interested 
therein shall pay their proportions to be determined as pro- 
vided in section ten. 

15. Nothing contained in this chapter shall affect any 
covenants or agreements among the proprietors of such 
drains or common sewers. 1 

The previous ten sections apply (so far as the same are applicable) 
to the laying out of sewers and drains under the act of 1869, ch. Ill; 
which is contained in sections two, three, and four of this chapter. 2 

i Gen. Stats, ch. 43, §§ 4-14. 2 stats. 1869, ch. Ill, § 4. 



SEWERS AND DRAINS. 275 

16. The ma} T or and aldermen of an}^ city, except the 
city of Boston, or the inhabitants of any town, in which 
main drains or common sewers are hereafter laid and con- 
structed under the provisions of chapter one hundred and 
eleven of the acts of the year eighteen hundred and sixty- 
nine, may by vote determine, that, instead of paying an 
assessment under section four of chapter forty-eight of the 
General Statutes, every person who enters his particular 
drain into such main drains or common sewers, or uses the 
same in any way, shall pay for the permanent privilege to 
his estate such reasonable sum as the mayor and aldermen 
of said city, or the selectmen of said town shall determine. 

17. Any person aggrieved by any determination of the 
mayor and aldermen, or the selectmen, made under the 
last provision of the foregoing section, may at any time 
within six months after the same is made known to him, 
apply to the county commissioners for a revision thereof. 
If, after due hearing, the county commissioners reduce the 
amount to be paid for said privilege, he shall have the 
benefit of such reduction, and the city or town shall pay 
the costs of the application and hearing ; otherwise said 
costs shall be paid by the applicant. 

18. All sums due under section one of this act shall con- 
stitute a lien upon the real estate using such main drains 
or common sewers, and benefited thereby for the same 
length of time, and may be collected in the same manner 
as taxes upon real estate, or they may be sued for in an 
action of contract in the name of the city or town. 1 

19. Plans and descriptions of all main drains and com- 
mon sewers belonging to any city or town, with a true 
record of the charges of making and repairing the same, 
and of all assessments therefor, shall be kept in the office 
of the clerk of such city or town. 

20. The city council of any city and the legal voters of 
any town in a meeting called for that purpose, may adopt 
a system of sewerage to apply to any part or the whole of 
the territory of such city or town, and may provide that 

i Stats. 1878, ch. 184, §§ 1-3. 



276 TOWN AND PARISH OFFICER. 

the assessment -authorized by said section four shall be 
made upon the owners of the estates embraced in such 
system, by a fixed uniform rate, based upon the estimated 
average cost of all the sewers therein, according to the 
number of feet of frontage their estates have on any street 
or way where a sewer is constructed, or according to the 
number of feet of area their said estates contain within a 
fixed depth from such street or way, or both, according to 
such frontage and area, which rate when adopted shall not 
be changed. 1 

21. At any time within sixty days after notice is given 
of a sewer or sidewalk assessment on any real estate, if 
the owner thereof shall in writing notify the board making 
the same that he desires to have the amount due on said 
assessment apportioned, said board shall apportion the 
same into three equal parts, and certify such apportion- 
ment to the assessors of the city or town where such real 
estate is situate ; and said assessors shall add one of said 
equal parts with the interest due thereon, from the date of 
the apportionment, to the annual tax of real estate for 
each of the three years next ensuing. All liens for the 
collection of such assessments shall continue in force until 
the expiration of two years from the time the last instal- 
ment thereof is committed to the tax collector ; and all 
sewer and sidewalk assessments upon real estate, which 
remain unpaid after the time stated in the order making 
the same for payment thereof, shall draw interest from 
such time until paid. 

22. This act shall take effect upon its passage (May 15, 
1878), but shall not be in force in any city or town unless 
adopted by the city council of such city or by the inhab- 
itants of such town. 2 

1 Stats. 1878, ch, 266. 2 stats. 1878, ch. 185. 



FENCES AND FENCE VIEWERS. 277 



CHAPTER XXX. 

FENCES AND FENCE VIEWERS. 

1. Fences four feet high and in good repair, consisting 
of rails, timber, boards, or stone, and brooks, rivers, 
ponds, creeks, ditches, and hedges, or other things which 
the fence viewers within whose jurisdiction the same shall 
lie shall consider equivalent thereto, shall be deemed legal 
and sufficient fences. 

2. The respective occupants of lands enclosed with 
fences shall, so long as both parties improve the same, 
keep up and maintain partition fences between their own 
and 'the next adjoining enclosures, in equal shares. 1 

3. In Newell v. Hill, 2 Chief Justice Shaw said : " In the first place, 
it is to be considered that the division fence — that is, the whole of 
the division fence — is made for their mutual and equal benefit ; and 
therefore, upon the plainest principles of equity, the expense, as well 
of cost of building as of land to build upon, must be borne by them 
equally. For although the fence is built, one section by one party 
and another by the other, this is only an easy and convenient mode 
of dividing the expense of building. Though thus built in separate 
sections, each has an interest in the whole and in every section ; and, 
when built, it belongs beneficially to both, as much as if it had been 
done by contract and the expense divided, or both joined in building 
the whole. If it is to be, in all respects, for their common benefit 
and at their common expense, it follows that it is at their equal ex- 
pense of land as well as cost of building. As every species of fence 
must take some land, and cannot stand on a mathematical line, and 
as there is no reason why it should stand more on the land of one 
than the other, it follows as a necessary consequence that it is to 
stand equally on the land of both, or one-half on each. It is one of 
the cases where equality is equity." 2 But this rule as to division 
fence between adjoining proprietors does not apply as between the 
public and the owner of land abutting upon a highway, no such mu- 
tual duty or obligation existing ; and therefore there can be no corre- 
sponding right or privilege. 3 

i Gen. Stats, ch. 25, §§1, 2. s Holbrook v. McBride, 4 Gray, 

2 2 Met. 182. 215. 



278 TOWN AND PARISH OFFICER. 

4. A reasonable quantity of land can be taken for building such 
fence upon. And it is to be determined by a just regard to the 
proper accomplishment of the purpose which both parties have in 
view, and in which they have a common interest. And great regard 
should be had to the usage and practice of men of ordinary skill and 
judgment in the building of fences in their own lands on similar kinds 
of soil, and for like purposes. 1 And where a ditch is a proper fence, 
half of it may be cut on the lands of each adjoining owner. 

5. If a party refuses or neglects to repair or rebuild a 
partition fence which he ought to maintain, the aggrieved 
party may complain to two or more fence viewers of the 
place, who, after due notice to each party, shall survey the 
same, and if they determine that the fence is insufficient, 
they shall signify the same in writing to the delinquent oc- 
cupant, and direct him to repair or rebuild the same within 
such time as they judge reasonable, not exceeding fifteen 
days ; and if the fence shall not be repaired or rebuilt ac- 
cordingly, the complainant may make or repair the same. 

6. When a deficient fence built up or repaired by a com- 
plainant as provided in the preceding section, is, after due 
notice to each party, adjudged sufficient by two or more of 
the fence viewers, and the value thereof, with their fees, 
ascertained by a certificate under their hands, the com- 
plainant may demand, either of the occupant or owner of 
the land where the fence was deficient, double the sum so 
ascertained ; and in case of neglect or refusal to pay the 
same so due, for one month after demand, he may recover 
the same with interest at one per cent a month, in an ac- 
tion of contract. 

No action lies to recover upon an award of fence viewers under this 
and the preceding section, unless they have previously adjudicated 
that the existing fence was insufficient and illegal, and that the fence 
which the plaintiff has rebuilt is sufficient. 2 

7. When a controversy arises about the rights of the 
respective occupants in partition fences and their obliga- 
tion to maintain the same, either party may apply to two 
or more fence viewers of the places where the lands lie, 

1 Holbrook v. McBride, 4 Gray, 2 Sears v. Charlemont, 6 Allen, 
215. 437. 



FENCES AND FENCE VIEWERS. 279 

who, after due notice to each party, ma}^ in writing assign 
to each his share thereof, and direct the time within which 
each party shall erect or repair his share, in the manner 
before provided ; which assignment, being recorded in the 
city or town clerk's office, shall be binding upon the par- 
ties and upon the succeeding occupants of the lands ; who 
shall thereafter maintain their respective parts of said 
fence. 1 

8. A division by fence viewers would ordinarily embrace the whole 
continuous line of fence between two adjacent proprietors. But a 
division may be legal, although the assignment to the parties does 
not include the entire line of the land of the adjacent owner. 2 Un- 
der a complaint that a fence is out of repair, fence viewers have no 
authority to assign to each of the owners of adjoining land his re- 
spective share of the fence, and to direct the building thereof 
within a specified time. 3 

9. If a party refuses or neglects to erect and maintain 
the part of a fence assigned to him by the fence viewers, 
the same may, in the manner before provided, be erected 
and maintained b} T any aggrieved party ; and he shall be 
entitled to double the value thereof ascertained and recov- 
ered in the manner aforesaid. 

10. When in a controversy between adjoining occupants 
as to their respective rights in a partition fence, it appears 
to the fence viewers that either of the occupants had, be- 
fore any complaint made to them, voluntarily erected the 
whole fence, or more than his just share of the same, or 
otherwise become proprietor thereof, the other occupant 
shall pay the value of so much thereof as may be assigned 
to him to repair or maintain, to be ascertained and recov- 
ered as provided in this chapter. 

1 1 . Partition fences shall be kept in good repair through- 
out the year, unless the occupants of the lands on both, 
sides shall otherwise agree. 

12. When lands of different persons which are required 
to be fenced, are bounded upon or divided from each other 
by a river, brook, pond, or creek, if the occupant of the 

1 Gen. Stats, ch. 25, §§ 3-5. s gears v. Charlemont, 6 Allen, 

2 Alger v. Pool, 11 Cush. 450. 437. 



280 TOWN AND PARISH OFFICER. 

land on one side refuses or neglects to join with the occu- 
pant of the land on the other side in making a partition 
fence on the one side or the other, or shall disagree re- 
specting the same, then two or more fence viewers of 
the place or places wherein such lands lie, on application 
made to them, shall forthwith view such river, brook, 
pond, or creek ; and if they determine the same not to 
answer the purpose of a sufficient fence, and that it is 
impracticable to fence on the true boundary line without 
unreasonable expense, they shall, after giving notice to the 
parties to be present, determine how, or on which side 
thereof, the fence shall be set up and maintained, or 
whether partly on the one side and partly on the other 
side, as to them shall appear just, and shall reduce their 
determination to writing ; and if either of the parties re- 
fuses or neglects to make and maintain his part of the 
fence according to the determination of the fence viewers, 
the same may be made and maintained as before provided, 
and the delinquent party shall be subject to the same costs 
and charges to be recovered in like manner. 

13. When lands belonging to two persons in severalty 
have been occupied in common without a partition fence 
between them, and one of the occupants desires to occupy 
his part in severalty, and the other occupant refuses or 
neglects on demand to divide the line where the fence 
ought to be built, or to build a sufficient fence on his part 
of the line when divided, the party desiring it may have 
the same divided and assigned by two or more fence view- 
ers of the same place in the manner provided in this chap- 
ter ; and the fence viewers may in writing assign a 
reasonable time, having regard to the season of the year, 
for making the fence ; and if the occupant complained of 
does not make his part of the fence w r ithin the time so as- 
signed, the other party may, after having made up his part 
of the fence, make up the part of the other, and recover 
therefor double the expense thereof, together with the fees 
of the fence viewers, in the manner provided in this 
chapter. 1 

i Gen. Stats, ch. 25, §§ 6-10. 



FENCES AND FENCE VIEWERS. 281 

14. Fence viewers, when called to act under the pro- 
visions of section ten, chapter twenty-five, of the General 
Statutes (the foregoing section 13) , shall have power to 
determine whether a partition fence is required between 
the lands of the respective occupants, and ma} 7 , when the 
division line between their lands is in dispute or unknown, 
designate a line on which the fence shall be built, and may 
employ a surveyor therefor, if necessary ; and such line 
shall, for the purpose of maintaining a fence, be deemed 
the division line between such lands until it shall be deter- 
mined by judicial proceedings, or otherwise, that the true 
line is in another place, and, until so determined, all pro- 
visions of law relating to the erection, maintenance, and 
protection of fences shall be applicable to the fence erected 
or to be erected on such line. 

15. If, after a fence has been made upon a line thus 
designated, it shall be determined by judicial proceedings, 
or otherwise, that the true division line is in another place, 
each occupant shall remove his part of the fence to, and 
rebuild the same on such line ; and in case of neglect or 
refusal by either party to remove and rebuild his share 
thereof, the other may apply to two or more fence viewers, 
who, upon such application, shall view the premises, and 
assign a time within which the fence shall be removed and 
rebuilt, and give the delinquent party notice thereof; and 
if such party does not remove and rebuild the fence within 
the time so assigned, the other party may remove and re- 
build the same, and recover double the expense therefor, 
together with the fees of the fence viewers, to be ascer- 
tained and recovered in the manner provided in section four, 
chapter twenty-five, of the General Statutes. 1 

The line designated by the fence viewers for a fence under the pro- 
visions of this and the preceding section, has no effect upon the title 
or right of possession of the land. It is a line established only for 
the purpose of maintaining a fence. 2 

16. Where a division of fence between the owners of 
improved lands has been made either by fence viewers or 

l Stats. 1863, ch. 190, §§ 1, 2. 2 Currier v. Esty, 116 Mass. 577. 



282 TOWN AND PARISH OFFICER. 

under an agreement in writing between the parties, re- 
corded in the office of the clerk of the city or town, the 
several owners of such lands, and their heirs and assigns, 
shall erect and support said fences agreeably to such di- 
vision ; but if a person lays his lands common, and deter- 
mines not to improve any part of the same adjoining the 
fence divided as aforesaid, and gives six months' notice of 
his determination to all the adjoining occupants of lands, 
he shall not be required to keep up or support said fence 
during the time that his lands lie common and unimproved. 

17. When one party ceases to improve his land, or lays 
open his enclosure, he shall not take away any part of the 
partition fence belonging to him and adjoining to the next 
enclosure ; provided, the owner or occupant thereof will 
allow and pay therefor so much as two or more fence 
viewers in writing determine to be the reasonable value 
thereof. 

18. When land which has lain unenclosed is afterwards 
enclosed or used for depasturing, the occupant or owner 
thereof shall pay for one-half of each partition fence 
standing upon the line between the same land and the 
land of the enclosures of any other occupant or owner, the 
value thereof to be ascertained in writing (in case they do 
not agree between themselves), by two or more of the 
fence viewers of the same place wherein such partition 
fence stands ; and if such occupant or owner, after the 
value has been so ascertained, neglects or refuses, for 
thirty days after demand made, to pay for one-half of the 
partition fence, the proprietor of the fence may maintain 
an action of contract for such value, and the costs of ascer- 
taining the same ; but the occupant or owner of unenclosed 
land on the island of Nantucket, used for depasturing 
only, shall not be subject to the foregoing provisions of 
this section. 

19. Where the line upon which a partition fence is to be 
made or divided is the boundary line of one or more cities 
or towns, or partly in one and partly in another, a fence 
viewer shall be taken from each place. 



FENCES AND FENCE VIEWERS. 283 

20. When a water fence, or fence running into the 
water, is necessary to be made, the same shall be done in 
equal shares unless otherwise agreed by the parties ; and 
in case either party refuses or neglects to make or maintain 
the share to him belonging, similar proceedings shall be 
had as in other cases of the like kind respecting other 
fences before mentioned. 

21. Any fence viewer, duly chosen and sworn, who 
when requested unreasonably neglects to view a fence, or 
to perform any other duties required of him in this chapter, 
shall forfeit five dollars, to be recovered by action of tort 
to the use of the place, or on complaint to the use of the 
commonwealth, and he shall also be liable for all damages 
to the party injured. 1 

22. The fees prescribed by law for fence viewers (which 
are at the rate of two dollars per day for the time he is so , 
employed) , 2 shall be paid by all or by such of the parties 
in dispute, and in such proportions, as shall be determined 
by a certificate in writing, under the hands of the fence 
viewers, acting in each case. And if any person or per- 
sons, so required to pay the whole or any portion of said 
fees, shall neglect to pay the fence viewers within thirty 
days after the certificate has been delivered, the fence 
viewers may recover double the amount of the fees due 
from such delinquent party. 

23. Fence viewers shall hereafter be chosen by ballot. 3 

1 Gen. Stats, ch. 25, §§ 11-16. 8 Stats. 1862, ch. 93, §§ 1, 3. 

2 Gen. Stats, ch. 25, § 17. 



284 TOWN AND PARISH OFFICER. 



CHAPTER XXXI. 
POUNDS AND IMPOUNDING CATTLE. FIELD DRIVERS. 

1. Each cit}' and town shall, at its own expense and in 
such places therein as the city council of the city or the 
inhabitants of the town direct, maintain one or more suf- 
ficient pounds. A city or town that for three months neg- 
lects to provide or maintain a sufficient pound shall forfeit 
fifty dollars. 

2. Whoever wilfully injures a city or town pound shall 
be punished by fine not exceeding fifty dollars, or by im- 
prisonment in the common jail not exceeding ninety days. 

3. Each city and town shall annually appoint a suitable 
keeper of each pound therein. 1 

4. Every field driver, within his city or town, shall take 
up, at any time, swine, sheep, horses, asses, mules, goats, 
or neat cattle, going at large in the public highways or 
town ways or on common and unimproved lands, and not 
under the care of a keeper ; and for any such cattle or 
beasts so going at large on the Lord's day, the field driver 
or any other inhabitant of the city or town may, in an 
action of tort, recover for each beast the same fees which 
the field driver is entitled to receive for like beasts when 
distrained and impounded. 2 

5. The duty of the field driver, under the last section, is confined to 
the taking up of cattle going at large, and impounding them. And 
he is not required to state the cause of such acts, has no claim for 
any damage, and can demand only his fees, which are provided by 
statute. No notice is required by the statute to be given at the time 
of impounding by the field driver, as it seems to be taken for granted 
that the pound keeper will be bound to take notice of the public 
office, power, and duty of the field driver in the performance of his 
duties under the statute. 3 

i Gen. Stats, ch. 25, §§ 18, 20. 3 Wild v. Skinner, 23 Pick. 251; 

2 Gen. Stats, ch. 25, § 21. Pickard v. Howe, 12 Met. 198. 



IMPOUNDING CATTLE, ETC. 285 

6. A turnpike road is a highway within the meaning of the statute 
restraining cattle from going at large. 1 

7. And the owner of land adjoining a highway, and who owns to 
the centre thereof, has a right to depasture his land in the highway ; 
but he cannot, in virtue of this right, be exempted from the duty of 
preventing his cattle from going at large thereon without the care of 
a keeper, but is bound by the same law which is applicable to others ; 2 
viz., that cattle must be " actually under the efficient care of a 
keeper " while upon the highways, or they will be " going at large," 
and may be impounded by a field driver. 3 

8. When beasts are so taken up and distrained by a 
field driver, they shall be forthwith impounded in the city 
or town pound, and the keeper shall furnish them with 
suitable food and water while they are detained in his 
custody. 4 

9. When beasts are taken up and distrained by a field 
driver, in pursuance of the provisions of chapter twenty- 
five of the General Statutes, he may impound them in any 
suitable place on his own premises ; and for the purposes 
of said chapter he shall be considered a pound keeper, and 
such place on his own premises shall be considered a town 
pound, in relation to beasts therein impounded. 

This shall apply only to such towns as shall adopt the 
same by a vote of the majority of the legal voters present 
and voting at a town meeting duly held for the purpose. 5 

10. To " forthwith impound," is to impound without unnecessary 
delay. The act of impounding by the field driver does not require 
that he should open or close a gate. The pound is under the care and 
in the custody of a keeper elected for the purpose. 6 

11. A pound keeper may lawfully impound beasts which have been 
distrained damage feasant in a yard furnished and used by the town 
as a town pound, if the town have furnished and used no other place 
as a pound, although the inhabitants of the town have passed no vote 
concerning the same, and taken no action at any town meeting for the 
purpose of establishing it as a pound. 7 

12. The field driver shall be entitled to fifty cents per 
head for horses, asses, mules, and neat cattle, and ten cents 

1 Pickard v. Howe, 12 Met. 198. 5 Stats. 1869, ch. 366, §§ 1, 2. 

2 Farker v. Jones, 1 Allen, 270. 6 Byron v. Crippen, 4 Gray, 312. 

3 Bruce v. White, 4 Gray, 345. 7 Anthony v. Anthony, 6 Allen, 

4 Gen. Stats, ch. 25, § 22. 408. 



286 TOWN AND PARISH OFFICER. 

per head for sheep, goats, and swine, so taken up by him, 
and the pound keeper shall be entitled to four cents per 
head for the animals so impounded ; but if more than ten 
sheep are taken up at the same time, the fees for all above 
that number shall be only one-half of the above fees. 1 

13. The foregoing section is so far amended, as to make the fees 
of the field drivers fifty cents per head for driving swine to the pound. 2 

14. The pound keeper shall not deliver to the owner any 
beasts so impounded, until the owner pays him his fees, the 
expense of keeping the beasts, and the fees of the field 
driver, which latter, when received, he shall pay to the field 
driver. 

15. When a person is injured in his land by sheep, 
swine, horses, asses, mules, goats, or neat cattle, he may 
recover his damages in an action of tort against the owner 
of the beasts, or by distraining the beasts doing the dam- 
age, and proceeding therewith as hereinafter directed ; but 
if the beasts were lawfully on the adjoining lands, and 
escape therefrom in consequence of the neglect of the 
person who suffered the damage to maintain his part of the 
division fence, the owner of the beasts shall not be liable 
for such damage. 3 

16. The restriction, in the foregoing section, upon the right to 
maintain an action clearly applies, and applies only, to cases where 
there has been a division of fence. It is when the party neglects to 
maintain " his part of the division fence ; " but it cannot with propri- 
ety be said that any particular part of the fence is to be kept in re- 
pair by one rather than the other until a division has taken place. 

17. In the same case, 4 Dewey, J. further said: "Upon general 
principles, it is no more the duty of the individual who has a field 
adjacent to that his neighbor proposes to depasture with his cattle, 
to take the incipient steps to cause a partition of the fence between 
their adjacent lands, than of him who owns the cattle, and intends to 
use his lands for depasturing them. Both parties are entitled to the 
privileges given by statute, authorizing proceedings for dividing their 
fences, and assigning to each his proper portion thereof ; and if either 
wishes to avail himself of its provisions for his protection, he must 
move in the matter if his neighbor does not. By taking the proper 

1 Gen. Stats, ch. 25, § 23. 3 Gen. Stats, ch. 25, §§ 24, 25. 

2 Stats. 1863, ch. 178. 4 Thayer v. Arnold, 4 Met. 589. 



IMPOUNDING CATTLE, ETC. 287 

steps, and causing a partition to be made of the fences, and duly 
maintaining and keeping in repair the part assigned to him, he can 
easily avoid all liability to an action, if his cattle escape into the ad- 
jacent lot through defect of the fence assigned to the owner of such 
lot. If he neglects to procure a division of the fence, it is not for him 
to complain that the owner of the adjacent lot has been alike inactive 
in the matter ; but the result must be, that both parties must be pre- 
sumed to elect to occupy and improve their lands under the rules of 
the common law, and subject to the common-law responsibilities ; 
which is, that at common law no man is bound to fence against an 
adjoining close, unless by force of prescription; but that every man 
must, at his peril, keep his cattle on his own close, and prevent their 
escape therefrom. We take the rule therefore to be, that the obliga- 
tion to make and maintain a partition fence is equally operative upon 
both adjacent owners ; each party is equally bound to move in the 
matter; and, until such division, there can be no deficiency or neglect 
alleged as to the fence of either party, separately and individually. 
If either, therefore, puts cattle on his own land, and they enter upon 
the land of the adjacent proprietors, there being no partition of the 
fence separating the lots, he will be liable to an action of trespass 
therefor." 

18. If beasts doing damage are distrained, and driven to the dis- 
trainer's yard till the pound keeper can be called, and then delivered 
to the latter in the highway, it is the duty of the distrainer to state 
his demand, and to give notices, as required in Gen. Stats, ch. 25, 
§§ 27, 29, 30 (sections 20, 22, and 24 below) ; and, if he omits to do so, 
he will be liable as a trespasser ah initio. 1 

19. The beasts so distrained for doing damage shall be 
impounded in the city or town pound, or in some suitable 
place, under the immediate care and inspection of the 
person who distrained them, and he shall furnish them with 
suitable food and water while they remain impounded. 
(See section nine above.) 

20. If the beasts are impounded in the city or town 
pound, the distrainer shall leave with the pound keeper a 
memorandum in writing under his hand stating the cause 
of impounding, and the sum that he demands from the 
owner for the damage done by the beasts, and also for the 
daily charges of feeding them ; and if they are impounded 
in any other place, he shall give a like memorandum to the 
owner of the beasts if demanded by him. 2 

i Merrick v. Work, 10 Allen, 544; 2 Gen. Stats, ch. 25, §§ 26, 27. 
Sherman v. Braman, 13 Met. 407. 



288 TOWN AND PARISH OFFICER. 

21. The owner of the land where the damage is committed is not 
required to employ a field driver to take up and impound the cattle, 
but he may do it himself. 1 

22. The pound keeper, when the beasts are in his cus- 
tody, shall not deliver them to the owner until the owner 
pays him his fees, the sum so demanded by the distrainer 
for the damages and charges aforesaid, the expense of ad- 
vertising the beasts if they are advertised, and all other 
legal costs and expenses. 2 

23. A pound keeper, who receives and impounds beasts for going 
at large, and refuses to deliver them to the owner on demand, is jus- 
tified in his refusal until his fees and those of the field drivers are paid. 
And is not liable therefor in an action of replevin. 3 

24. When beasts are impounded, the person impounding 
them shall within twenty-four hours thereafter give notice 
thereof in writing to the owner or person having the care 
of them, if known and living within six miles from the 
place of impounding, which notice shall be delivered to the 
party or left at his place of abode, and shall contain a 
description of the beasts and a statement of the time, 
place, and cause of impounding. 4 

25. Such notice must be given within twenty-four hours after the 
beasts are taken up and impounded ; and the notice is valid, although 
the hour of the day on which they were thus taken up does not 
appear on the face of it. It is sufficient if it is left at the dwelling- 
house of the party; and a personal service of it upon the owner of 
the beasts is not required. 5 

26. An oral notice is not sufficient ; and the owners of the beasts 
impounded have a right to insist on the precise notice required by law. 
Upon it their rights and remedies might materially depend ; and un- 
less by their actions the persons impounding the beasts are induced 
to omit it, the failure to give such notice is a fatal defect in their pro- 
ceedings, and deprives them of their justification. 

Neither is the notice rendered unnecessary where the owners of the 
beasts impounded have actual knowledge of it. 6 

27. But a written notice, posted up and published in a newspaper 
by a field driver who has impounded beasts going at large in a public 

1 Wild v. Skinner, 23 Pick. 253. 5 Pickard v. Howe, 12 Met. 198. 

2 Gen. Stats, ch. 25, § 28. 6 Coffin v. Field, 7 Cush. 355; San- 
8 Folger v. Hinckley, 5 Cush. 263. derson v. Lawrence, 2 Gray, 178. 

4 Gen. Stats, ch. 25, § 29. 



IMPOUNDING CATTLE, ETC, 289 

highway, which states that the beasts were " going at large, and with- 
out a keeper," sets forth a sufficient cause of impounding under the 
statute. 

28. In the same case, 1 Merrick, J. said : " There are but two causes 
for which animals can lawfully be taken up by a field driver and im- 
pounded in the town pound. He may take them up, in the first place, 
when they are at large without a keeper in highways or town ways, 
or on common and unimproved land ; or, in the second place, as the 
agent of a private proprietor other than the owner, when they are 
unlawfully upon his enclosed or improved land, doing or having 
done damage there. In either of these cases the animals may be im- 
pounded, and then the notices required by law are to be given, con- 
taining a description of the animals, and a statement of the time, 
place, and cause of impounding. It is not essential to the validity of 
the notices to be given that they should be framed in the very words 
of the statute ; but any form of expression which evinces in a clear 
and intelligible manner the cause for which the animals were taken 
up and impounded is sufficient." 

29. If there is no person entitled to notice according to 
the provisions of the preceding section, the person im- 
pounding the beasts shall within forty-eight hours there- 
after cause to be posted in some public place in the city or 
town, and in a public place in each of any two adjoining 
cities or towns, if within four miles from the place where 
they were taken, a written notice containing a description 
of the beasts, and a statement of the time, place, and 
cause of impounding them ; and in such case, if the value 
of the beasts exceeds thirty dollars, and if no person 
appears to claim them within seven days after the day of 
impounding, a like notice shall be published three weeks 
successively in some public newspaper if there is any pub- 
lished within twent} 7 miles from the place of impounding, 
the first publication to be within fifteen days after the day 
of impounding. 

30. If the owner or keeper of the beasts is dissatisfied 
with the claim of the person impounding them, he may 
have the amount for which he is liable ascertained and de- 
termined by two disinterested and discreet persons, to be 
appointed and sworn for that purpose by a justice of the 
peace or by the city or town clerk ; and the sum so deter- 

1 Cleverly v. Fowle, 3 Allen, 39. 
19 



290 TOWN AND PARISH OFFICER. 

mined by them shall be received instead of the sum 
demanded by the person who impounded the beasts, and 
they shall thereupon be delivered to the owner or keeper 
thereof. 

31. If the sum for which the beasts are impounded and 
detained is not paid within fourteen days after notice of 
the impounding has been given as before directed, or after 
the last publication of such notice in a newspaper, the per- 
son who impounded them shall apply to a justice of the 
peace, or to the city or town clerk, and obtain a warrant to 
two disinterested and discreet persons, to be appointed 
and sworn by the justice or clerk, and the persons so ap- 
pointed shall ascertain and determine the sum due from the 
owner or keeper of the beasts for the damages, costs, and 
expenses for which the}^are impounded and detained, in- 
cluding a reasonable compensation for their own services. 

32. If the sum so found to be due is not forthwith paid, 
the person who impounded the beasts shall cause them to 
be sold by auction, in the city or town where they are im- 
pounded, first advertising the sale by posting up a notice 
thereof twenty-four hours beforehand at some public place 
in the same city or town. 

33. The proceeds of such sale, after paying all said 
damages, costs, expenses, and charges for advertising and 
selling the beasts, shall be deposited in the treasury of the 
city or town, for the use of the owner of the beasts, in case 
he substantiates his claim thereto within two years from 
the sale. 

34. If beasts lawfully distrained or impounded escape 
or are rescued, the pound keeper, field driver, or other 
person who distrained them, may at any time within seven 
days thereafter retake the beasts and hold and dispose 
thereof as if no such escape or rescue had taken place. 

35. Whoever rescues beasts lawfully distrained or im- 
pounded for any cause whatever, shall be liable in an 
action of tort brought by any person injured to pay all 
damages which such person sustains thereby, and the fees 
and charges incurred before the rescue ; and he shall also 



IMPOUNDING CATTLE, ETC. 291 

forfeit a sum not less than five nor more than twenty 
dollars, to be recovered by complaint. 

36. The defendant in an action brought for rescuing 
beasts distrained or impounded shall not be allowed to 
allege or give in evidence the insufficiency of the fences, or 
any other fact or circumstance to show that the distress 
or impounding was illegal ; but if there is such ground of 
objection to the proceeding of which he is entitled to avail 
himself, he may have the advantage thereof in an action 
of replevin. 

37. If the owner of a ram or he-goat suffers it to go at 
large out of his enclosure between the first day of July and 
the twenty-fifth day of December, he shall forfeit five 
dollars for each offence, if prosecuted within thirty days 
next after such ram or he-goat is found going at large, to 
be recovered on complaint in the county in which such 
owner fives. 1 

i Gen. Stats, ch. 25, §§ 30-38. 



292 TOWN AND PARISH OFFICER. 



CHAPTER XXXII. 

PUBLIC SCHOOLS. 

1. In every town there shall be kept, for at least six 
months in each year, at the expense of said town, by a 
teacher or teachers of competent ability and good morals, 
a sufficient number of schools for the instruction of all the 
children who may legally attend public school therein, in 
orthography, reading, writing, English grammar, geogra- 
phy, arithmetic, the history of the United States, drawing, 
and good behavior. Agriculture, algebra, vocal music, 
drawing, physiology, and hygiene shall be taught by lec- 
tures or otherwise, in all the public schools in which the 
school committee deem it expedient. 1 

Any town may, and every town having more than ten thousand 
inhabitants shall, annually make provision for giving free instruc- 
tion in industrial or mechanical drawing to persons over fifteen years 
of age, either in day or evening schools, under the direction of the 
school committee. 2 

2. Everjr town may, and every town containing five 
hundred families or householders shall, besides the schools 
prescribed in the preceding section, maintain a school to 
be kept by a master of competent ability and good morals, 
who, in addition to the branches of learning before men- 
tioned, shall give instruction in general history, book- 
keeping, surveying, geometry, natural philosoph} 7 , chemis- 
try, botany, the civil polity of this commonwealth and of 
the United States, and the Latin language. Such last 
mentioned school shall be kept for the benefit of all the 
inhabitants of the town, ten months at least, exclusive of 
vacations, in each year, and at such convenient place, or 

i Gen. Stats, ch. 38, § 1 ; Stats. 2 Stats. 1870, ch. 248. 

1862, ch. 7 j Stats. 1870, ch. 248. 



PUBLIC SCHOOLS. 293 

alternately at such places, in the town, as the legal voters 
at their annual meeting determine. And in every town 
containing four thousand inhabitants, the teacher or teach- 
ers of the schools required by this section shall, in addition 
to the branches of instruction before required, be compe- 
tent to give instruction in the Greek and French languages, 
astronomy, geology, rhetoric, logic, intellectual and moral 
science, and political econonry. 1 

In order to ascertain that any town is subject to the requirement 
of the foregoing section, "the number of families or householders 
thereof shall be determined by the latest public census which shall 
have been taken, by the authority either of this commonwealth or 
of the United States." 2 

3. Two adjacent towns, having each less than five hun- 
dred families or householders, may form one high school 
district, for establishing such a school as is contemplated 
in the preceding section, when a majority of the legal 
voters of each town, in meetings called for that purpose, 
so determine. 

4. The school committees of the two towns so united 
shall elect one person from each of their respective boards, 
and the two so elected shall form the committee for the 
management and control of such school, with all the powers 
conferred upon school committees and prudential com- 
mittees. 

5. The committee thus formed shall determine the loca- 
tion of the school-house authorized to be built by the towns 
forming the district, or if the towns do not determine to 
erect a house, shall authorize the location of such school 
alternately in the two towns. 

6. In the erection of a school-house for the permanent 
location of such school, in the support and maintenance 
of the school, and in all incidental expenses attending the 
same, the proportions to be paid b} r each town, unless 
otherwise agreed upon, shall be according to its proportion 
of the county tax. 3 

i Gen. Stats, ch. 38, § 2. 3 Gen. Stats, ch. 38, §§ 3-5. 

2 Stats. 1868, ch. 226. 



294 TOWN AND PARISH OFFICER. 

Two or more towns may unite in establishing union schools for the 
accommodation of such contiguous portions of each as shall be mu- 
tually agreed upon, when a majority of the legal voters in each town, 
in meetings called for that purpose, so determine. In providing for 
the management and control of said school ; in determining the loca- 
tion of said school-houses, or of the schools ; in apportioning the 
expenses of erecting such school-houses, and of the maintenance of 
said school, with all expenditures incident to the same, — all proceedings 
shall be governed by the provisions of the three preceding sections. 1 

7. Any town may establish and maintain, in addition to 
the schools required by law to be maintained therein, 
schools for the education of persons over twelve 2 years of 
age ; may determine the term or terms of time in each 
year, and the hours of the da}^ or evening, during which 
said school shall be kept ; and appropriate such sums of 
mone} T as may be necessary for the support thereof. 

8. When a school is so established, the school committee 
shall have the same superintendence over it as they have 
over other schools ; and shall determine what branches of 
learning may be taught therein. 

9. In every public school having an average of fifty 
scholars, the school district or town to which such school 
belongs shall employ one or more female assistants, unless 
such district or town, at a meeting called for the purpose, 
votes to dispense with such assistant. 

10. It shall be the duty of the president, professors, and 
tutors of the universit}' at Cambridge and of the several 
colleges, of all preceptors and teachers of academies, and 
of all other instructors of youth, to exert their best en- 
deavors to impress on the minds of children and youth 
committed to their care and instruction, the principles of 
piety and justice, and a sacred regard to truth ; love 
of their country, humanity, and universal benevolence ; 
sobriety, industry, and frugality; chastity, moderation, 
and temperance ; and those other virtues which are the 
ornament of human society and the basis upon which a re- 
publican constitution is founded ; and it shall be the duty 
of such instructors to endeavor to lead their pupils, as 

i Stats. 1868, ch. 278. 2 stats. 1869, ch. 305. 



PUBLIC SCHOOLS. 295 

their ages and capacities will admit, into a clear under- 
standing of the tendency of the above-mentioned virtues 
to preserve and perfect a republican constitution and 
secure the blessings of liberty, as well as to promote their 
future happiness, and also to point out to them the evil 
tendency of the opposite vices. 

11. It shall be the duty of the resident ministers of the 
gospel, the selectmen, and the school committees, to exert 
their influence and use their best endeavors that the youth 
of their towns shall regularly attend the schools established 
for their instruction. 

12. The several towns shall, at their annual meetings, 
or at a regular meeting called for the purpose, raise such 
sums of money for the support of schools as they judge 
necessary ; which sums shall be assessed and collected in 
like manner as other town taxes. 1 

13. Any town in this commonwealth may raise, by tax- 
ation or otherwise, and appropriate money to be expended 
by the school committee, in their discretion, in providing 
for the conveyance of pupils to and from the public 
schools. 2 

14. Nothing contained in this chapter shall affect the 
right of any corporation established in a town to manage 
any estate or funds given or obtained for the purpose of 
supporting schools therein, or in any wise affect such 
estate or funds. 

15. A town which refuses or neglects to raise money for 
the support of schools, as required by this chapter, shall 
forfeit a sum equal to twice the highest sum ever before 
voted for the support of schools therein. A town which 
refuses or neglects to choose a school committee to super- 
intend said schools, or to choose prudential committees in 
the several districts, when it is the duty of the town to 
choose such prudential committee, shall forfeit a sum not 
less than five hundred nor more than one thousand dollars, 
to be paid into the treasury of the county. 

16. Three-fourths of any forfeiture paid into the treas- 
1 Gen. Stats, ch. 38, §§ 6-12. 2 stats. 1869, ch. 132. 



296 TOWN AND PARISH OFFICER. 

ury of the county, under the preceding section, shall be 
paid by the treasurer to the school committee, if any, 
otherwise to the selectmen of the town from which it is re- 
covered, who shall apportion and appropriate the same to 
the support of the schools of such town, in the same 
manner as if it had been regularly raised by the town for 
that purpose. 

17. Every town shall, at the annual meeting, choose, by 
written ballots, a board of school committee, which shall 
have the general charge and superintendence of all the public 
schools in town. Said board shall consist of any number 
of persons divisible by three, which said town has decided to 
elect, one-third thereof to be elected annually, and continue 
in office three }<ears. If a town fails or neglects to choose 
such committee, an election at a subsequent meeting shall 
be valid. 1 No person shall be deemed to be ineligible to 
serve upon a school committee by reason of sex. 2 

The charge and superintendence which they are to take of the 
schools is general ; they can delegate subordinate matters. 3 But the 
power of fixing times of vacation and granting holidays for schools 
resides only in the committee. 4 

18. If any person elected a member of the school com- 
mittee, after being duly notified of his election in the 
manner in which town officers are required to be notified, 
refuses or neglects to accept said office, or if an}' member 
of the board declines further service, or, from change of 
residence or otherwise, becomes unable to attend to the 
duties of the board, the remaining members shall, in writ- 
ing, give notice of the fact to the selectmen of the town, 
or to the ma}'Or and aldermen of the city, and the two 
boards shall thereupon, after giving public notice of at 
least one week, proceed to fill such vacancy ; and a 
majority of the ballots of persons entitled to vote shall be 
necessary to an election. 

19. If all the persons elected as members of the school 

i Gen. Stats, ch. 38, §§ 13-16. 4 Ninth School District in Wey- 

2 Stats. 1874, ch. 389. mouth v. Loud, 12 Gray, 61. 

3 Huse v. Lowell, 10 Allen, 149. 



PUBLIC SCHOOLS. 297 

committee, after such notice of their election, refuse or 
neglect to accept the office, or, having accepted, afterwards 
decline further service, or become unable to attend to the 
duties of the board, the selectmen or the mayor and alder- 
men shall, after giving like public notice, proceed by ballot 
to elect a new board, and the votes of a majorhty of the 
entire board of selectmen, or of the mayor and aldermen, 
shall be necessaiy to an election. 

20. The term of service of every member elected in pur- 
suance of the provisions of the two preceding sections, 
shall end with the municipal or official year in which he is 
chosen, and if the vacancy which he was elected to fill was 
for a longer period, it shall, at the first annual election 
after the occurrence of the vacancy, be filled in the manner 
prescribed for original elections of the school committee. 

21. All the members of the school committee shall con- 
tinue in office for the purpose of superintending the winter 
terms of the several schools, and of making and transmit- 
ting the certificate, returns, and report of the committee, 
notwithstanding the election of any successor at the annual 
meeting ; but for all other duties, the term of office shall 
commence immediately after election. 1 

22. Any town may, at the annual meeting, vote to in- 
crease or diminish the number of its school committee. 
Such increase shall be made by adding one or more to 
each class to hold office according to the tenure of the 
class to which they are severally chosen. Such diminution 
shall be made by choosing, annually, such number as will 
in three years effect it, and a vote to diminish shall remain 
in force until the diminution under it is accomplished. 

23. The school committee shall appoint a secretary and 
keep a permanent record book, in which all its votes, 
orders, and proceedings shall by him be recorded. 

24. The school committee, unless the town at its annual 
meeting determines that the duty may be performed by 
the prudential committee, shall select and contract with 
the teachers of the public schools ; shall require full and 

i Gen. Stats, ch. 38, §§ 17-20. 



298 TOWN AND PARISH OFFICER. 

satisfactory evidence of the good moral character of all 
instructors who may be employed ; and shall ascertain, by 
personal examination, their qualifications for teaching and 
capacity for the government of schools. 1 

25. The power conferred on school committees " to select and con- 
tract with the teachers for the town and district schools," includes the 
power to fix the compensation to be paid them, and to bind the town 
to pay the same. 2 And the town authorities have no power to inter- 
fere with such duties of the committee ; they can only vote to limit 
the school to the time prescribed by statute, and resolve, if they 
choose, not to continue it beyond such time. 3 

26. The authority and duty of the school committee of a town are 
not confined to ascertaining by examination the literary qualifications 
of teachers selected by the prudential committee, and their capacity 
for the government of schools ; but they are the sole judges of their 
qualification in all respects to teach and govern the school for which 
they are selected. 4 

27. Ever} r instructor of a town or district school shall, 
before he opens such school, obtain from the school com- 
mittee a certificate in duplicate of his qualifications, one of 
which shall be deposited with the selectmen before any 
payment is made to such instructor on account of his ser- 
vices ; and upon so filing such certificate, the teacher of 
any public school shall be entitled to receive, on demand, 
his wages due at the expiration of any quarter, or term 
longer or shorter than a quarter, or upon the close of any 
single term of service, subject to the condition specified in 
section thirteen of chapter forty. 

28. The school committee may dismiss from employ- 
ment any teacher whenever they think proper, and such 
teacher shall receive no compensation for services rendered 
after such dismissal. 5 

And a teacher so dismissed can recover only that portion of the 
salary due at the time of such dismissal, even if under an annual 
salary payable at stated periods of time. 6 

1 Gen. Stats, ch. 38, §§ 21-23. 4 School Dist. No. 10 in Uxbridge 

2 Batchelder v. Salem, 4 Cush. v. Mowry et al., 9 Allen, 94. 
599. 5 Gen. Stats, ch. 38, §§ 24, 25. 

3 Charlestown v. Gardner, 98 Mass. 6 Knowles v. Boston, 12 Gray, 
587 ; Batchelder v. Salem, supra. 339. 



PUBLIC SCHOOLS. 299 

29. The school committee, in each city or town where 
there is no superintendent of schools, or some one or more 
of them, for the purpose of organizing and making a care- 
ful examination of the schools, and of ascertaining that the 
scholars are properly supplied with books, shall visit all 
the public schools in the town on some clay during the 
first week after the opening of such schools, and also on 
some da}^ during the two weeks preceding the close of the 
same ; and shall also for the same purposes visit, without 
giving previous notice thereof to the instructors, all the 
public schools in town once in each month, and they shall, 
at such examinations, inquire into the regulation and dis- 
cipline of the schools, and the mibits and proficiency of the 
scholars therein. 1 

30. The school committee shall require the daily reading 
of some portion of the Bible, without written note or oral 
comment, in the public schools, but they shall require no 
scholar to read from an}' particular version, whose parent 
or guardian shall declare that he has conscientious scru- 
ples against allowing him to read therefrom, nor shall they 
ever direct any school books calculated to favor the tenets 
of any particular sect of Christians to be purchased or 
used in any of the public schools. 2 

31. The school committee shall direct what books shall be used in 
the public schools, and shall prescribe, as far as is practicable, a 
course of studies and exercises to be pursued in said schools. 

In any town or city in this commonwealth, a change may be 
made in the school books used in the public schools by a vote of two- 
thirds of the whole school committee thereof, at a meeting of said 
committee, notice of such intended change having been given at a 
previous meeting of said committee. 

32. If any change is made, as provided for in the preceding sec- 
tion, each pupil then belonging to the public schools and requiring the 
substituted book shall be furnished with the same by the school com- 
mittee, at the expense of said town or city, 3 on giving up a copy of 
the superseded book in condition fit to be used.* 

1 Gen. Stats, ch. 38, § 26, and 3 stats. 1876, ch. 47. 
Stats. 1876, ch. 186. 4 Stats. 1877, ch. 24. 

2 Stats. 1862, ch. 57. 



300 TOWN AND PARISH OFFICER. 

33. The school committee shall procure, at the expense 
of the city or town, a sufficient supply of text-books for 
the public schools, and give notice of the place where they 
may be obtained. Said books shall be furnished to the 
pupils at such prices as merely to reimburse the expense 
of the same. The school committee may also procure, 
at the expense of the city or town, such apparatus, books 
of reference, and other means of illustration as they 
deem necessary for the schools under their supervision, 
in accordance with appropriations therefor previously 
made. 

Any town, by legal vote, may authorize the school committee to 
purchase text-books and stationery J for use in the public schools, said 
text-books to be the property of the city or town, and to be loaned to 
pupils under such regulations as the school committee may provide. 2 

34. If any scholar is not furnished by his parent, master, 
or guardian with the requisite books, he shall be supplied 
therewith b}- the school committee, at the expense of the 
town. 

35. The school committee shall give notice in writing to 
the assessors of the town of the names of the scholars 
supplied with books under the provisions of the preceding 
section, of the books so furnished, the prices thereof, and 
the names of the parents, masters, or guardians who ought 
to have supplied the same. The assessors shall add the 
price of the books to the next annual tax of such parents, 
masters, or guardians ; and the amount so added shall be 
levied, collected, and paid into the town treasury, in the 
same manner as the town taxes. 

36. If the assessors are of opinion that any parent, 
master, or guardian is unable to pay the whole expense of 
the books so supplied on his account, they shall omit to 
add the price of such books, or shall add only a part 
thereof, to his annual tax, according to their opinion of 
his ability to pay. 

37. In any town containing five hundred families, in 
which a school is kept for the benefit of all the inhabi- 

i Stats. 1878, ch. 23. 2 stats. 1873, ch. 106. 



PUBLIC SCHOOLS. 301 

tants, as before provided, the school committee shall per- 
form the like duties in relation to such school, the house 
where it is kept, and the supply of all things necessary 
therefor, as the prudential committee may perform in a 
school district. 

38. The members of the school committee shall be paid 
in cities one dollar, and in towns two * dollars and a half, 
each, a da} T , for the time they are actually employed in 
discharging the duties of their office, together with such 
additional compensation as the town or city may allow. 

39. Any town annually, by legal vote, and any city by 
an ordinance of the city council, may require the school 
committee annually to appoint a superintendent of public 
schools, who, under the direction and control of said com- 
mittee, shall have the care and supervision of the schools, 
with such salary as the city government or town may de- 
termine ; and in every city in which such ordinance is in 
force, and in every town in which such superintendent is 
appointed, the school committee shall receive no compen- 
sation, unless otherwise provided by such city government 
or town. 2 

The compensation of said superintendent shall in no case be less 
than one dollar and fifty cents for each day of actual service. 3 And 
by statutes 1870, ch. 118, a school committee required to appoint a 
superintendent shall have authority to determine his salary. 

Any two or more towns may, by a vote of each, form a district 
for the purpose of employing a superintendent of public schools 
therein, who shall perform in each town the duties prescribed by law. | 

Such superintendent shall be annually appointed by a joint com- 
mittee composed of the chairman and secretary of the school committee 
of each of the towns in said district, w T ho shall determine the relative 
amount of service to be performed by him in each town, fix his sal- 
ary, and apportion the amount thereof to be paid by the several 
towns, and certify the same to the treasurer of each town. Said joint 
committee shall, for the purposes last named, be held to be the 
agents of each town composing the district aforesaid. 4 

40. Every town not divided into school districts shall 
provide and maintain a sufficient number of school-houses, 

1 Stats. 1873, ch. 157. s gtats. 1860, ch. 101. 

2 Gen. Stats, ch. 38, §§ 29-35. * stats. 1870, ch. 183. 



302 TOWN AND PARISH OFFICER. 

properly furnished and conveniently located, for the accom- 
modation of all the children therein entitled to attend the 
public schools ; and the school committee, unless the town 
otherwise direct, shall keep them in good order, procuring 
a suitable place for the schools, where there is no school- 
house, and providing fuel and all other things necessary 
for the comfort of the scholars therein, at the expense of 
the town. 

A town which for one year refuses or neglects to comply with the 
requisitions of this section, shall forfeit a sum not less than five 
hundred nor more than one thousand dollars, under the same provis- 
ions as those made in sections fifteen and sixteen of this chapter. 1 

41. Any town, at a meeting legally called for the pur- 
pose, may determine the location of its school-houses, and 
adopt all necessary measures to purchase or procure the 
land for the accommodation thereof. 2 

42. When land has been designated by a city council, 
town, school district, or those acting under its authority, 
or determined upon by the mayor and aldermen of a city, 
or by the selectmen of a town, as a suitable place for the 
erection of a school-house and the necessary buildings, or 
for enlarging a school-house or school-house lot, the mayor 
and aldermen, or the selectmen, may proceed to select, at 
their discretion, and to lay out a school-house lot or an 
enlargement thereof, and to appraise the damages to the 
owner of such land in the manner provided for laying out 
town ways and appraising damages sustained thereby ; and 
upon such selection and laying out of such lot, or any en- 
largement thereof, being accepted and adopted by the city 
council or the town, the land shall be taken, held, and used 
for the purpose aforesaid. But no lot so taken or en- 
larged shall exceed in the whole eighty square rods, exclu- 
sive of the land occupied by the school buildings. 3 

43. Where the owner feels aggrieved by the laying out 
or enlargement of such lot, or by the award of damages, 
he may, upon application therefor in writing to the county 

i Stats. 1871, ch. 145. 3 stats. 1874, ch. 342. 

2 Gen. Stats, ch. 38, §§ 36, 37. 



PUBLIC SCHOOLS. 303 

commissioners, within one year thereafter, have the matter 
of his complaint tried by a jury, and the jury may change 
the location of such lot or enlargement, and assess dam- 
ages therefor. The proceedings shall in all respects be 
conducted in the manner provided in cases of damages by 
laying out highways. If the damages are increased, or 
the location changed, by the jury, the damages and all 
charges shall be paid by the town ; otherwise, the charges 
arising on such application shall be paid by such applicant. 
The land so taken shall be held and used for no other pur- 
pose than that contemplated by this chapter, and shall 
revert to the owner, his heirs or assigns, upon the discon- 
tinuance there, for one year, of such school as is required 
by law to be kept by the town. 

44. The school committee of a town in which the school- 
district system has been abolished, or does not exist, shall 
have the general charge and superintendence of the school- 
houses in said town, so far as relates to the use to which 
the same may be appropriated. 

45. Except as may be otherwise provided in their respec- 
tive charters, or acts in amendment thereof, the provisions 
of this chapter, so far as applicable, shall apply to cities. 
And the ma}^or and aldermen in the several cities are au- 
thorized to execute the powers given in section thirty-eight 
of this chapter to the selectmen and town. 

46. Upon the abolition or discontinuance of any district, 
its corporate powers and liabilities shall continue and re- 
main so far as may be necessary for the enforcement of its 
rights and duties ; and the property which it possessed at 
the time shall be subject to all legal process against it. 1 

The school-district system in Massachusetts as well as union dis- 
tricts and contiguous school districts in adjoining towns has been 
abolished. It is supposed the duties of town officers attending the 
abolition, such as taking possession of the property of the districts, 
appraising the same, &c, have been performed, and therefore it is 
thought to be unnecessary to insert them here. By the leading act 
abolishing the school-district system it was provided that the corpo- 
rate powers and liabilities of any school district abolished by this act 

i Gen. Stats, ch. 39, § 6. 



804 TOWN AND PARISH OFFICER. 

shall continue and remain for the purposes expressed in the foregoing 
section. 1 But it has since been provided by law that towns in which 
the school-district system was abolished as above, may at a meeting 
called for the purpose, within two years from the passage of the act 
(April 22, 1870), by a vote of two-thirds of the legal voters present 
and voting thereon, re-establish such school districts. School districts 
re-established under this provision shall possess corporate rights and 
powers, and be subject to liabilities the same as before they were 
abolished. When any town votes to re-establish its school districts 
under this provision, all school district property appraised and taken 
under the provisions of the law abolishing school districts, which is 
still in the possession of the town and used for public-school purposes, 
may forthwith be re-appraised under the direction of the town and 
restored to said districts. And at the next annual assessment there- 
after, a tax shall be levied and paid into the treasury of the towns, 
upon each district, equal to the amount of the appraised value of its 
property thus restored, or the public-school property may be divided 
among the several districts and adjusted in any other manner agreed 
upon by the town at a legal meeting : provided, nothing in this act 
shall be construed to require an appraisal of school property in towns 
where the school-district property has not been taken, appraised, and 
the value thereof remitted to the several districts as provided by 
law. 2 Any town in which the school-district system now (March 15, 
1873) exists, may abolish the same, by vote, at a town meeting called 
for the purpose ; and such town shall thereafter be subject to the pro- 
visions of chapters one hundred and ten and four hundred and twenty- 
three of the acts of eighteen hundred and sixty-nine. 3 

47. Sewing shall be taught, in any city or town, in all 
the public schools in which the school committee of such 
o,\ty or town deem it expedient. 

The action of the school committee of any city or town 
in causing sewing to be taught in the public schools thereof, 
is ratified, confirmed, and made valid to the same extent 
as if this act had passed prior to such teaching. 4 

48. The city council of any city, and any town, may 
establish and maintain one or more industrial schools and 
raise and appropriate the money necessary to render them 
efficient. Such schools shall be under the superintendence 
of the board of school committee of the city or town 
wherein they are established, and such board shall employ 

i Stats. 1869, ch. 110, and ch. 423. 3 stats. 1873, ch. 95. 
2 Stats. 1870, ch. 196. * Stats. 1876, ch. 3. 



PUBLIC SCHOOLS. 305 

the teachers, prescribe the arts, trades, and occupations to 
be taught in such. schools, and shall have the general con- 
trol and management thereof: provided, that in no case 
shall the expense of any such school exceed the appropria- 
tion specifically made therefor ; and provided, that nothing 
in this act contained shall authorize the school committee 
of any city or town to compel any scholar to study any 
trade, art, or occupation without the consent of the parent 
or guardian of such scholar, and that attendance upon any 
such school shall not take the place of the attendance upon 
public schools required by law. 1 

49. The city council of any city, and the inhabitants of 
any town, may establish and maintain one or more schools 
for the purpose of training young men or boys in nautical 
duties, with the powers and subject to the provisions of 
law contained in chapter eighty-six of the laws of the year 
eighteen hundred and sevent}-two, except that the school 
committee of such city or town may excuse boys attending 
such nautical schools from attendance on other schools. 
Such schools may be maintained upon shore, or upon ships 
or other vessels, at the option of the said school committee. 2 

1 Stats. 1872, ch. 86. 2 stats. 1878, ch. 159. 



20 



306 TOWN AND PARISH OFFICER. 



CHAPTER XXXIII. 

SCHOOL FUNDS. 

1. The present school fund of this commonwealth, to- 
gether with such additions as may be made thereto, shall 
constitute a permanent fund, to be invested by the treasurer 
with the approbation of the governor and council, and 
called the "Massachusetts School Fund;" the principal 
of which shall not be diminished, and the income of which, 
including the interest on notes and bonds taken for sales 
of Maine lands and belonging to said fund, shall be appro- 
priated as hereinafter provided. 1 

2. The secretary of the board of education and the treas- 
urer and receiver-general shall be commissioners whose 
duty shall be to invest and manage the Massachusetts 
school fund, and report annually to the legislature the con- 
dition and income thereof. All new investments of said 
fund, or any part of the same, shall be made with the 
approval of the governor and council. 2 

3 . One-half of the annual income of the Massachusetts 
school fund shall be apportioned and distributed for the 
support of public schools without a specific appropriation, 
and in the manner following, to wit : Each town comply- 
ing with all laws in force relating to the distribution of 
said income, and whose valuation of real and personal 
estate, as shown by the last returns thereof, does not 
exceed one million dollars, shall annually receive two 
hundred dollars ; each tqwn complying as aforesaid, whose 
valuation is more than one million, and does not exceed 
three million dollars, shall receive one hundred and fifty 
dollars ; and each town complying as aforesaid, whose val- 
uation is more than three millions, and does not exceed 

1 Gen. Stats, ch. 36, § 1. 2 stats. 1866, eh. 53. 



SCHOOL FUNDS. 307 

five million dollars, shall receive one hundred dollars. The 
remainder of said moiety, after the division above provided, 
shall be distributed to all the towns and cities of the com- 
monwealth whose valuation does not exceed ten million 
dollars, in proportion to the number of persons belonging 
to each, between five and fifteen years of age. 

All money appropriated for other educational purposes, 
unless otherwise provided in the act appropriating the same, 
shall be paid from the other half of said income. If the 
income in any year exceeds such appropriations, the sur- 
plus shall be added to the principal of said fund. 1 

4. The income of the school fund appropriated to the support of 
public schools, which may have accrued upon the thirty-first day of 
December, 2 in each year, shall be apportioned by the secretary and 
treasurer, and on the twenty-fifth day of January thereafter be paid 
over by the treasurer to the treasurers of the several towns and cities 
for the use of the public schools, according to the number of persons 
therein between the ages of five and fifteen years, ascertained and 
certified as provided in sections three and four of chapter forty. But 
no such apportionment shall be made to a town or city which has not 
complied with the provisions of sections five and six of said chapter, 
or which has not raised by taxation for the support of schools during 
the school year embraced in the last annual returns, including only 
wages and board of teachers, fuel for the schools, and care of fires 
and school-rooms, a sum not less than one dollar and fifty cents for 
each person, between the ages of five and fifteen years, belonging to 
said town or city on the first day of May of said school year. 3 

5. No apportionment and distribution of the annual in- 
come of the school fund, as provided by the second and 
third sections of chapter thirty-six of the General Statutes, 
shall be made to any town or city which has not complied 
with the requisitions of the first and second sections of 
chapter thirty-eight, and the fifth and sixth sections of 
chapter forty of the General Statutes, and of any amend- 
ments to either of said sections ; (and the laws of the com- 
monwealth relating to truancy ; 4 ) or which has not raised 

1 Stats. 1874, ch. 348. chapter 234, Stats. 1878, shall affect 

2 Stats. 1867, ch. 98. the apportionment and distribution 
8 Gen. Stats, ch. 38, § 3. of the annual income of the school 
4 Stats. 1878, ch. 234, § 1. Pro- fund prior to the year eighteen hun- 
ted, however, that nothing in this dred and eighty. 



308 TOWN AND PARISH OFFICER. 

by taxation for the support of schools, during the school 
year embraced in the last annual returns, including only 
wages and board of teachers, fuel for the schools, and 
care of fires and school-rooms, a sum not less than three 
dollars for each person between the ages of five and fifteen 
years, belonging to said town or city on the first day of 
May of said school } r ear. 1 

6. Any town which shall maintain the school required 
to be maintained by the second section of chapter thirty- 
eight of the General Statutes, not less than thirty-six 
weeks, exclusive of vacations in each year, shall not be 
liable to the forfeiture provided in the foregoing section 
for non-compliance with the requisitions of the aforesaid 
second section. 2 

7. In the distribution of the moiety of the income of the 
school fund, for the support of the public schools of the 
state, every city and town complying with all laws in 
force relating to the distribution of the same shall annu- 
ally receive one hundred dollars ; and the residue of said 
moiety shall annually be apportioned among the several 
cities and towns, in proportion to the number of children 
in each between the ages of five and fifteen years. 3 

8. The income of the school fund received by the several 
cities and towns shall be applied by the school committees 
thereof to the support of the public schools therein, but 
said committees may, if they see fit, appropriate there- 
from any sum, not exceeding twenty-five per cent of the 
same, to the purchase of books of reference, maps, and 
apparatus for the use of said schools. 4 

i Stats. 1865, ch. 142, § 1. 3 stats. 1869, ch. 168. 

2 Stats. 1866, ch. 208. 4 Gen. Stats, ch. 36, § 4. 



SCHOOL REGISTERS AND RETURNS. 309 



CHAPTER XXXIV. 

SCHOOL REGISTERS AND RETURNS. 

1. The clerks of the several cities and towns, upon 
receiving from the secretary of the board of education 
the school registers and blank forms of inquiry for school 
returns, shall deliver them to the school committee of such 
cities and towns. 

2. If a school committee fails to receive such blank 
forms of return on or before the last day of March, they 
shall forthwith notify the secretary of the board of educa- 
tion, who shall transmit such forms as soon as may be. 1 

3. The school committees shall annually, in the month 
of May, ascertain, or cause to be ascertained, the names 
and ages of all persons belonging to their respective towns 
and cities on the first day of May, between the ages of 
five and fifteen years, and make a record thereof. 

4. The school committee shall annually, on or before 
the last day of the following April, certify under oath 
the numbers so ascertained and recorded, and also the 
sum raised by such city or town for the support of schools 
during the preceding school year, including only wages 
and board of teachers, fuel for the schools, and care of 
the fires and school-rooms, and they shall transmit such 
certificate to the secretary of the board of education. The 
form of such certificate shall be as follows, to wit : — 

We, the school committee of , do certify that on the first 

day of May, in the year , there were belonging to said town 

the number of persons between the ages of five and fifteen ; 

and we further certify that said town raised the sum of 
dollars for the support of public schools for the preceding school 
year, including only the wages and board of teachers, fuel for the 
schools, and care of fires and school-rooms ; and that said town main- 

i Gen. Stats, ch. 40, §§ 1, 2. 



310 TOWN AND PARISH OFFICER. 

tained, during said year, each of the schools required to be kept by 
the first section of the thirty-eighth chapter of the General Statutes 
for a period not less than six months ; and we further certify that 
said town maintained during said year school for the benefit 

of all the inhabitants of the town as required by section two of chap- 
ter thirty-eight of the General Statutes for months and 
days 

School Committee. 



ss. On this day of personally appeared the 

above named school committee of and made oath that the 

above certificate by them subscribed is true. 

Before me, Justice of the Peace. 1 

5. In the returns made by the school committee to the 
secretary of the board of education, twent}^ days or forty 
half-days of actual session shall be counted as one month. 2 

6. The school committee shall cause the school registers 
to be faithfully kept in all the public schools, and shall 
annually, on or before the last day of April, return the 
blank forms of inquiry, duly filled up, to the secretary of 
the board of education ; and shall also specif}' in said re- 
turns the purposes to which the money received by their 
town or city from the income of the school fund has been 
appropriated. 

7. The school committee shall annually make a detailed 
report of the condition of the several public schools, which 
report shall contain such statements and suggestions in 
relation to the schools as the committee deem necessary 
or proper to promote the interests thereof. The committee 
shall cause said report to be printed for the use of the 
inhabitants, in octavo, pamphlet form, of the size of the 
annual reports of the board of education, and transmit 
two copies thereof to the secretary of said board, on or 
before the last day of April, and deposit one copy in the 
office of the clerk of the city or town. 

"A town may appropriate money to indemnify its school com- 
mittee for expenses incurred in defending an action for an alleged 
libel contained in a report made by them in good faith and in which 
judgment has been rendered in their favor ." 3 

i Stats. 1874, ch. 303, §§ 1, 2. 3 Fuller v. Groton, 11 Gray, 340. 

2 Stats. 1865, ch. 142, § 3. 



SCHOOL REGISTERS AND RETURNS. 311 

" A school committee of a city caused to be printed an address by 
them to the people of the city regarding an occurrence in the public 
schools, and referred to such address in their subsequently printed 
annual report as a part thereof. Held, that they were authorized to 
charge the expense of printing the address upon the city, under this 
section." 1 

8. When a school committee fails, within the prescribed 
time, to make either the returns or report required of them 
by law, the secretary of the board of education shall forth- 
with notify such committee, or the clerk of the city or 
town, of such failure ; and the committee or clerk shall 
immediately cause the same to be transmitted to the 
secretary. 

9. If a report or return is found to be informal or in- 
correct, the secretary shall forthwith ±eturn the same, with 
a statement of all deficiencies therein, to the committee 
for its further action. 

10. The returns or reports of a city or town so returned 
by the secretary for correction, or which have not reached 
his office within the time prescribed by law, shall be re- 
ceived by him if returned during the month of May ; but 
in all such cases ten per cent shall be deducted from the 
income of the school fund which such city or town would 
have been otherwise entitled to. If such returns or reports 
fail to reach his office before the first day of June, then 
the whole of such city or town's share of the income shall 
be retained by the treasurer of the commonwealth, and 
the amount so retained, as well as the ten per cent when 
deducted, shall be added to the principal of the school 
fund. And such city or town shall in addition thereto 
forfeit not less than one hundred nor more than two hun- 
dred dollars : provided, however, if said returns and reports 
were duly mailed in season to reach said office within the 
time required by law, then the city or town from which 
said returns or reports are due shall be exempt from the 
forfeiture otherwise incurred. 

11. The clerk of each city and town shall deliver one 
copy of the reports of the board of education and its 

1 Wilson v. Cambridge, 101 Mass. 142. 



312 TOWN AND PARISH OFFICER. 

secretary to the secretary of the school committee of the 
city or town, to be by him preserved for the use of the 
committee, tod transmitted to his successor in office : and 
two additional copies of said reports, for the use of said 
committee ; and shall also deliver one copy of said reports 
to the clerk of each school district, to be by him deposited 
in the school-district library, or, if there is no such library, 
carefully kept for the use of the prudential committee, 
teachers, and inhabitants of the district, during his con- 
tinuance in office, and then transmitted to his successor ; 
and in case the city or town shall not be districted, said 
reports shall be delivered to the school committee, and 
so deposited by them as to be accessible to the several 
teachers and to the citizens ; and such reports shall be 
deemed to be the property of the town or city, and not of 
any officer, teacher, or citizen thereof. 

12. When the school committee of a city or town is not 
less than thirteen in number, the chairman and secretary 
thereof may, in behalf of the committee, sign the annual 
school returns and the certificate required by sections four 
and five, 

13. A city or town which has forfeited any part of its 
portion of the income of the school fund through the fail- 
ure of the school committee to perform their duties in 
regard to the school report and school returns, may with- 
hold the compensation of the committee. 

14. The several school teachers shall faithfully keep the 
registers furnished to them, and make due return thereof 
to the school committee, or such person as they may desig- 
nate ; and no teacher shall be entitled to receive pajonent 
for services until the register, properly filled up and com- 
pleted, shall be so returned. 1 

And the school committee have no authority to waive this keeping 
of the register. 2 

i Gen. Stats, ch. 40, §§ 5-13. 2 Jewell v. Abington, 2 Allen, 592. 



ATTENDANCE OF CHILDREN IN SCHOOLS. 313 



CHAPTER XXXV. 

ATTENDANCE OF CHILDREN IN THE SCHOOLS. 

1 . Every person having under his control a child be- 
tween the ages of eight and fourteen years shall annually 
cause such child to attend some public day school in the 
city or town in which he resides, at least twenty weeks ; 
which time shall be divided into two terms each of ten 
consecutive weeks so far as the arrangement of school terms 
will allow ; and for every neglect of such duty the party 
offending shall forfeit to the use of the public schools of 
such city or town a sum not exceeding twenty dollars ; but 
if the party so neglecting was not able, by reason of 
poverty, to send such child to school, or such child has 
attended a private day school, approved by the school 
committee of such city or town for a like period of time ; 
or is regularly attending a public or private day school, 
known as a half-time school, also approved by them ; or 
that such child has been otherwise furnished with the 
means of education for a like period of time, or has already 
acquired the branches of learning taught in the public 
schools ; or if his physical or mental condition is such as 
to render such attendance inexpedient or impracticable, 
the penalty before mentioned shall not be incurred : pro- 
vided, that no objection shall be made by the school com- 
mittee to any such school on account of the religious 
teaching in said school. 

(For the purposes designated in this section,) school 
committees shall approve private schools in their respective 
localities only wiien satisfactor} T evidence is afforded them 
that the teaching in such schools corresponds in thorough- 
ness and efficiency to the teaching in the public schools, 
and that the progress made by the pupils in studies required 



314 TOWN AND PARISH OFFICER. 

by law is equal to the progress made during the same time 
in the public schools ; and such teaching shall be in the 
English language. 

2. The truant officers and the school committee of the 
several cities and towns shall vigilantly inquire into all 
cases of neglect of the duty prescribed in the preceding 
section, and ascertain the reasons, if any, therefor ; and 
such truant officers, or any of them, shall, when so directed 
by the school committee, prosecute, in the name of the city 
or town, any person liable to the penalty provided for in 
the preceding section. 

Justices of police of district courts, trial justices, trial 
justices of juvenile offenders, and judges of probate shall 
have jurisdiction within their respective counties of the 
offences described in this act. 1 

3. All children within the commonwealth may attend 
the public schools in the place in which they have their 
legal residence, subject to the regulations prescribed by 
law. 

4. The school committee shall determine the number and 
qualifications of the scholars to be admitted into the school 
kept for the use of the whole town. 

5. Children living remote from any public school in the 
town in which they reside may be allowed to attend the 
public schools in an adjoining town, under such regulations 
and on such terms as the school committees of the said 
towns agree upon and prescribe ; and the school committee 
of the town in which such children reside shall pay out of 
the appropriations of money raised in said town for the 
support of schools the sum agreed upon. 

6. Minors under guardianship, their father having de- 
ceased, may attend the public schools of the city or town 
of which their guardian is an inhabitant. 

7. With the consent of school committees first obtained, children 2 
may attend school in cities and towns other than those in which their 
parents or guardians reside ; but whenever a child resides in a city or 

i Stats. 1878, ch. 171; Stats. 1873, 2 stats. 1873, ch. 292, § 4. 
ch. 279; Stats. 1874, ch. 233. 



ATTENDANCE OF CHILDREN IN SCHOOLS. 315 

town different from that of the residence of the parent or guardian, 
for the sole purpose of attending school there, the parent or guardian 
of such child shall be liable to pay to such city or town, for tuition, 
a sum equal to the average expense per scholar for such school for 
the period the child shall have so attended. 

8. The school committee shall not allow any child to be 
admitted to or connected with the public schools, who has 
not been duly vaccinated. 

9. No person shall be excluded from a public school on 
account of the race, color, or religious opinions of the ap- 
plicant or scholar. 1 

The school committee of a town may lawfully pass an order that 
the schools thereof shall be opened each morning with reading from the 
Bible and prayer, and that during the prayer each scholar shall bow 
the head, unless his parents request that he should be excused from 
doing so, and may lawfully exclude from the school a scholar who 
refuses to comply with such order, and whose parents refuse to request 
that he shall be excused from doing so. 2 

10. Every member of the school committee under whose 
directions a child is excluded from a public school, and 
every teacher of such school from which a child is ex- 
cluded, shall, on application by the parent or guardian of 
such child, state in writing the grounds and reason of the 
exclusion. 

11. A child unlawfully excluded from any public school 
> shall recover damages therefor in an action of tort, to be 

brought in the name of such child by his guardian or next 
friend against the city or town by which such school is 
supported. 

12. The plaintiff in such action may, by filing inter- 
rogatories for discovery, examine any member of the school 
committee, or any other officer of the defendant city or 
town, as if he were a party to the suit. 3 

1 Gen. Stats, ch. 41, §§ 2-9. 3 Gen. Stats, ch. 41, §§ 10-12. 

2 Spiller v. Woburn, 12 Allen, 127. 



316 TOWN AND PARISH OFFICER. 



CHAPTER XXXVI. 

EMPLOYMENT OF CHILDREN AND REGULATIONS 
RESPECTING THEM. 

1. No child under the age of ten years shall be em- 
ployed (except during the vacations of the public schools *) 
in any manufacturing, mechanical, or mercantile establish- 
ment in this commonwealth, and any parent or guardian 
who permits such employment shall, for such offence, for- 
feit a sum of not less than twenty nor more than fifty 
dollars, for the use of the public schools of the city or 
town. 

2. No child under the age of fourteen years shall be so 
employed, unless during the year next preceding such em- 
ployment he has attended some public or private day 
school, under teachers approved by the school committee 
of the place where such school is kept, at least twenty 
weeks, which time may be divided into two terms, each of 
ten consecutive weeks, so far as the arrangements of school 
terms will allow ; nor shall such employment continue, un- 
less such child shall attend school as herein provided, in 
each and every year ; and no child shall be so employed 
who does not present a certificate, made by or under the 
direction of said school committee, of his compliance with 
the requirements of this act : provided, however, that a 
regular attendance during the continuance of such employ- 
ment in any school known as a half-time day school, or an 
attendance in any public or private day school, twenty 
weeks, as above stated, may be accepted by said school 
committee as a substitute for the attendance herein re- 
quired. 

For the purposes designated in this section, school committees 
shall approve private schools in their respective localities only when 

i Stats. 1878, ch. 257, § 5. 



EMPLOYMENT OF CHILDREN, ETC. 317 

satisfactory evidence is afforded them that the teaching in such 
schools corresponds in thoroughness and efficiency to the teaching in 
the public schools, and that the progress made by the pupils in studies 
required by law is equal to the progress made during the same time in 
the public schools ; and such teaching shall be in the English lan- 
guage. 1 

3. Every owner, superintendent, or overseer in any 
establishment above named, who employs or permits to be 
employed any child in violation of the second section of 
this act, and every parent or guardian who permits such 
employment, shall for such offence forfeit a sum of not 
less than twenty nor more than fifty dollars for the use of 
the public schools of such city or town. 

4. The truant officers shall, at least once in every school 
term, and as often as the school committee require, visit 
the establishments described by this act in their several 
cities and towns, and inquire into the situation of the chil- 
dren employed therein, ascertain whether the provisions 
of this act are duly observed, and report all violations to 
the school committee. 2 

5. Every owner, superintendent, or overseer of any 
manufacturing, mechanical, or mercantile establishment in 
this commonwealth shall require and keep on file a certifi- 
cate of the age and place of birth of every minor child 
under the age of sixteen years in his employ, or in the 
employ of such establishment, so long as such minor shall 
be so employed ; which certificate shall also state, in the 
case of a minor under the age of fourteen years, the 
amount of his or her school attendance during the j ear 
next preceding such employment. Said certificate shall 
be made by or under the direction of the school committee 
of the place where such attendance has been had, or where 
such establishment is located. 

6. In case no such certificate shall have been required 
by such owner, superintendent, or overseer, then such em- 
ployment shall be deemed to have been a violation of the 
second section of chapter fifty-two of the acts of the year 
eighteen hundred and seventy-six (section two above) . 

i Stats. 1878, ch. 171. 2 stats. 1876, ch. 52. 



318 TOWN AND PARISH OFFICER. 

7. The truant officers may demand the names of the 
minor children under the age of sixteen years employed in 
the establishments above named in their several cities and 
towns, arid may require that the certificates of age and 
school attendance prescribed in this act * shall be produced 
for their inspection ; and if the name and certificate as 
aforesaid be not produced in any case, it shall be prima 
facie evidence that the employment of such child is 
illegal. 

8. On and after the first day of May, eighteen hundred 
and eighty, no child under fourteen years of age shall be 
empk>3~ed in any manufacturing, mechanical, or mercantile 
establishment, while the public schools in the city or town 
where such child lives are in session, unless such child 
can read and write. Every owner, superintendent, or 
overseer in any establishment above named, who employs 
or permits to be employed any child in violation of this 
section, and every parent or guardian who permits such 
employment, shall for every such offence forfeit a sum of 
not less than twenty nor more than fifty dollars for the use 
of the public schools of such city or town. 2 

i Sections 5 to 8 of this chapter. 2 stats. 1878, ch. 257, §§ 1-4. 



TRUANT CHILDREN, ABSENTEES, ETC. 319 



CHAPTER XXXVH. 

TRUANT CHILDREN, ABSENTEES FROM SCHOOL, AND 
NEGLECTED CHILDREN. 

1. Each city and town shall make all needful provisions 
and arrangements concerning habitual truants and children 
between the ages of seven and fifteen years who may be 
found wandering about in the streets or public places of 
such city or town, having no lawful occupation or business, 
not attending school, and growing up in ignorance ; and 
shall also make such by-laws as shall be most conducive 
to the welfare of such children, and to the good order of 
such city or town ; and shall provide suitable places for 
the confinement, discipline, and instruction of such chil- 
dren : provided, that said by-laws shall be approved by the 
superior court, or a justice thereof, or by the judge of (the) 
probate (court) of the county. 

2. The school committee of the several cities and towns 
shall appoint and fix the compensation of two or more 
suitable persons, to be designated as truant officers, who 
shall, under the direction of said committee, inquire into 
all cases arising under such by-laws, and shall alone be 
authorized, in case of violation thereof, to make complaint 
and carry into execution the judgment thereon, 

And may serve all legal processes issued by the courts in pursu- 
ance of this act (sections one to seven inclusive), but shall not be 
entitled to or receive any fees therefor. 1 

3. Any minor convicted under such by-law of being an 
habitual truant, or of wandering about in the streets and 
public places of any city or town, having no lawful em- 
ployment or business, not attending school, and growing 
up in ignorance, shall be committed to any institution of 
instruction or suitable situation provided for the purpose 

i Stats. 1874, eh. 233. 



320 TOWN AND PARISH OFFICER. 

under the authority of section one * of this act, or by law, 
for such time, not exceeding two years, as the justice or 
court having jurisdiction may determine. Any minor so 
committed may, upon proof of amendment, or for other 
sufficient cause shown upon a hearing of the case, be dis- 
charged by such justice or court. 

4. Justices of police or district courts, trial justices, 
trial justices of juvenile offenders, and judges of probate 
(courts) shall have jurisdiction, within their respective 
counties, of the offences described in this act. . 

5. When three or more cities or towns in any county 
shall so require, the county commissioners shall establish 
at convenient places therein, other than the jail or house 
of correction, at the expense of the county, truant schools, 
for the confinement, discipline, and instruction of minor 
children convicted under the provisions of this act, 2 and 
shall make suitable provisions for the government and con- 
trol of said schools, and for the appointment of proper 
teachers and officers thereof. 

6. Any city or town may assign any such truant school 
as the place of confinement, discipline, and instruction for 
persons convicted under the provisions of this act ; 2 and 
shall pay such sum for the support of those committed 
thereto as the county commissioners shall determine, not 
exceeding the rate of two dollars per week for each person. 

7. Any city or town may, with the assent of the board 
of state charities, assign the state primary school at Mon- 
son as the place of confinement, discipline, and instruc- 
tion for persons convicted under the provisions of this act, 
instead of the truant schools heretofore mentioned ; and 
shall pay for the support of such persons committed thereto 
such sum as the inspectors of said school shall determine, 
not exceeding two dollars per week for each person. Any 
minor, so committed, may, upon satisfactory proof of 
amendment, or for other sufficient cause, be discharged by 
the board of state charities. 3 

1 Section 1 of this chapter. 3 Stats. 1873, ch. 262. 

2 Sections 1 to 7, inclusive, of this chapter. 



TRUANT CHILDREN, ABSENTEES, ETC. 321 

8. Any person who shall employ or exhibit, or who 
shall sell, apprentice, or give away for the purpose of em- 
ploying or exhibiting, any child under the age of fifteen 
} T ears, in or for the vocation, occupation, service, or pur- 
pose of dancing, playing on musical instruments, singing, 
walking on a wire or rope, or riding or performing as a 
gymnast, contortionist, or acrobat in any circus or theat- 
rical exhibition, or in any public place whatsoever, or who 
shall cause, procure, or encourage any such child to engage 
therein, shall be punished by a fine not exceeding two hun- 
dred dollars, or by imprisonment in the county jail not 
exceeding six months : provided, however, that nothing in 
this act (this section) shall be construed to prevent the 
education of children in vocal and instrumental music, or 
their employment as musicians in any church, chapel, or 
school or school exhibition, or prevent their taking part 
in any concert or musical exhibition on the special written 
permission of the mayor and aldermen of any city or the 
board of selectmen of any town. 1 

9. Each of the several cities and towns in this common- 
wealth is hereby authorized and empowered to make all 
needful provisions and arrangements concerning children 
under sixteen years of age, who, by reason of the neglect, 
crime, drunkenness, or other vices of parents, or from or- 
phanage, are suffered to be growing up without salutary 
parental control and education, or in circumstances exposing 
them to lead idle and dissolute lives ; and may also make all 
such by-laws and ordinances respecting such children as 
shall be deemed most conducive to their welfare and the 
good order of such city or town : provided, that said by-laws 
and ordinances shall be approved (by the superior court, 
or in vacation by a justice thereof 2 ), and shall not be re- 
pugnant to the laws of the commonwealth. 

It shall be the duty of every town of five thousand inhabitants or 
more to take action under this section concerning the care and educa- 
tion of neglected children. 3 

i Stats. 1877, ch. 172. 3 stats. 1878, ch. 217. 

2 Stats. 1867, ch. 2. 

21 



322 TOWN AND PARISH OFFICER. 






10. The mayor and aldermen of cities and the selectmen 
of towns availing themselves of the provisions of this act 
shall severalty appoint suitable persons to make complaints 
in case of violations of such ordinances or by-laws as may 
be adopted, who alone shall be authorized to make com- 
plaints under the authority of this act. 1 

The officers and duly appointed agents of the Massachusetts Chil- 
dren's Protective Society may also make complaints. 2 

11. When it shall be proved to any judge of the supe- 
rior court, or judge or justice of a municipal or police 
court, or to any trial justice, that an}^ child under sixteen 
years of age, by reason of orphanage, or of the neglect, 
crime, drunkenness, or other vice of parents, is growing 
up without education or salutary control, and in circum- 
stances exposing said child to an idle and dissolute life, 
any judge or justice aforesaid shall have power to order 
said child to such institution of instruction or other place 
that may be assigned for the purpose, as provided in this 
act, 1 by the authorities of the city^ or town in which such 
child may reside, for such term of time as said judge or 
justice may deem expedient, not extending beyond the age of 
twenty-one }^ears for males, or eighteen years for females, 
to be there kept, educated, and cared for according to law. 

12. Whenever it shall be satisfactorily proved that the 
parents of any child committed under the provisions of this 
act, 1 shall have reformed and are leading orderly and indus- 
trious lives, and are in a condition to exercise salutary 
parental control over their children, and to provide them 
with proper education and employment ; or whenever, said 
parents being dead, any person may offer to make suitable 
provision for the care, nurture, and education of such child 
as will conduce to the public welfare, and will give satisfac- 
tory security for the performance of the same, then the 
directors, trustees, overseers, or other board having charge 
of the institution to which such child may be committed, 
may discharge said child to the parents or to the party mak- 
ing provision for the care of the child as aforesaid. 8 

i Sections 9 to 12 of this chapter, 2 stats. 1878, ch. 217. 
inclusive. 3 stats. 1866, ch. 283. 



TRUANT CHILDREN, ABSENTEES, ETC. 323 

Whenever the town, city, or state authorities charged with the 
custody of destitute children shall delegate to the directors or man- 
agers of any charitable institution incorporated by law the custody 
of an infant of less than four years old, the said directors or managers 
shall be held to comply with all the provisions of law, and be subject 
to all the restrictions concerning such infant as may be required by 
law of the authorities so delegating the trust. 1 

l Stats. 1870, ch. 92. 



324 TOWN AND PARISH OFFICER. 



CHAPTER XXXVIH. 
JURORS. 

1. All persons who are qualified to vote in the choice 
of representatives in the general court shall be liable to 
be drawn and serve as jurors, except as is hereinafter 
provided. 

2. The following persons shall be exempt from serving 
as jurors, to wit : — 

The governor, lieutenant-governor, members of the coun- 
cil, secretary of the commonwealth, members and officers 
of the senate and house of representatives during the 
session of the general court, judges and justices of any 
court (except justices of the peace), county and special 
commissioners, clerks of courts, registers of probate and 
insolvency, registers of deeds, sheriffs and their deputies, 
coroners, constables, marshals of the United States and 
their deputies, and all other officers of the United States, 
counsellors and attorneys-at-law, settled ministers of the 
gospel, officers of colleges, preceptors and teachers of in- 
corporated academies, practising physicians and surgeons 
regularly licensed, cashiers of incorporated banks, constant 
ferrymen, persons who are more than sixty-five } T ears old, 
members of the volunteer militia, members of the ancient 
and honorable artillery company, and enginemen and mem- 
bers of the fire department of the city of Boston ; and 
enginemen and members of the fire department of other 
places may be exempt by the vote of the city council of 
the city or the inhabitants of the town. 1 

The superintendents, officers, and assistants employed in or about 
either of the state hospitals, state almshouses, jails, lunatic hospitals, 

i Gen. Stats, ch. 132, §§ 1, 2. 



jurors. 325 

houses of correction, houses of industry, reform schools, or the state 
prison, keepers of light-houses, conductors and engine-drivers of rail- 
road trains, and teachers in public schools, shall be exempt from 
service as jurors. 1 

No officer or soldier shall be liable to jury duty while in the active 
militia service ; and any officer or soldier who shall have served con- 
tinuously and faithfully for nine years in the volunteer militia shall 
be exempt for life thereafter from the performance of jury duty. 2 

3. No person shall be liable to be drawn and serve as a 
juror in any court often er than once in three years, except 
as provided in the two following sections, but he shall not 
be so exempt unless he actually attends and serves as a 
juror in pursuance of the draft. 

4. The inhabitants of the counties of Nantucket and 
Dukes County shall be liable to be drawn and serve as 
jurors once in every two years. 

5. No person shall be exempt from serving on a jury 
in any other court, in consequence of his having served 
before a justice of the peace or police court. No person 
shall be compelled to serve as a juror before any justice of 
the peace or police court more than twenty- four days in 
any one year, nor more than fourteen days at any one time, 
except to finish a case commenced within that time. 3 

" Any court " in the foregoing includes courts of the United States. 4 

6. The selectmen of each town shall once in every year 
prepare a list of such inhabitants of the town not abso- 
lutely exempt, as they think well qualified to serve as 
jurors, being persons of good moral character, of sound 
judgment, and free from all legal exceptions ; which list 
shall include not less than one for every one hundred in- 
habitants of the town, and not more than one for every 
sixty inhabitants, computing by the then last census, ex- 
cept that in the county of Dukes County it may include one 
for every thirty inhabitants. 

7. The list when so prepared shall be posted up by the 
selectmen in public places in the town, ten days at least 

i Stats. 1864, ch. 215. 3 Gen. Stats, ch. 132, §§ 3-5. 

2 Stats. 1878, ch. 265, § 149. 4 Swan's case, 16 Mass. 220. 



326 TOWN AND PARISH OFFICER. 

before it is submitted for revision and acceptance, and 
shall then be laid before the town ; and the town may alter 
it by adding the names of any persons liable to serve, or 
striking any names therefrom. 

8. The selectmen shall cause the names borne on the 
list to be written each on a separate paper or ballot, and 
shall roll up or fold the ballots so as to resemble each 
other as much as possible, and so that the name written 
thereon shall not be visible on the outside ; and they shall 
place the ballots in a box to be kept by the town clerk for 
that purpose. 

9. If any person whose name is so placed in the jury 
box is convicted of any scandalous crime, or is guilty of 
any gross immorality, his name shall be withdrawn there- 
from by the selectmen, and he shall not be returned to 
serve as a juror. 

10. The clerks of the supreme judicial and superior 
courts, in due season before each term (except the terms 
of the superior court in the county of Suffolk for criminal 
business commencing at other times than in January, April, 
July, and October) , and at such other times as the respec- 
tive courts may order, shall issue writs of venire facias for 
jurors, and shall therein require the attendance of the 
jurors on such day of the term as the court may order. 
The jurors returned for the superior court for criminal busi- 
ness in the county of Suffolk shall serve three terms. 

11. The clerks in issuing the venires shall require from 
each towm and city a number of jurors as nearly as may be 
in proportion to their respective number of inhabitants, so 
as to equalize as far as possible the duty of serving as 
jurors. 

12. The venires shall be delivered to the sheriff of the 
county, and by him transmitted to a constable in each of 
the towns and cities to which they are respectively issued, 
and they shall be served by the constable, without delay, 
on the selectmen and town clerk. 

13. Nothing contained in the preceding sections shall 
prevent any court from issuing venires for additional jurors 



jurors. 327 

in term time whenever it is necessary for the convenient 
despatch of their business ; in which -case the venires shall 
be served and returned, and the jurors required to attend 
on such days, as the court shall direct. 

14. When a suit is pending in the superior court for the 
county of Dukes County, wherein the inhabitants of any 
town in said county are disqualified from acting as jurors, 
any justice of the court, in term time or in vacation, may 
order the clerk of the court to issue writs of venire facias 
for a sufficient number of jurors to try such cause, from 
any town whose inhabitants are not so disqualified ; and 
the clerk shall issue a venire facias accordingly. 

15. All jurors, whether required to serve on a grand or 
traverse jury, by force of the laws relating to highways or 
mills, or on any other occasion (except inquests and pro- 
ceedings relating to the commitment of insane persons), 
shall be selected by drawing ballots from the jury box, and 
the persons whose names are borne on the ballots so drawn 
shall be returned to serve as jurors. 

16. When jurors are to be so drawn, the town clerk and 
selectmen shall attend at the clerk's office or some other 
public place appointed for the purpose, and if the clerk 
is absent, the selectmen may proceed without him. The 
ballots in the jury box shall be shaken and mixed together, 
and one of the selectmen without seeing the names written 
thereon shall openty draw therefrom a number of ballots 
equal to the number of jurors required. If a person so 
drawn is exempt by law, or is unable by reason of sickness 
or absence from home to attend as a juror, or if he has 
served as a juror in any court within three years then next 
preceding, his name shall be returned into the box and 
another drawn in his stead. 

17. When a person is drawn and returned to serve as a 
juror in any court, the selectmen shall indorse on the ballot 
the date of the draft and return it into the box, and when- 
ever there is a revision and renewal of the ballots in the 
box, the selectmen shall transfer to the new ballots the 
date of all the drafts made within three years then next 
preceding. 



328 TOWN AND PARISH OFFICER. 

18. Any town may at a legal meeting order that all drafts 
for jurors therein shall be made in open town meeting, 
in which case the draft shall be made b} T the selectmen 
in the manner prescribed in the two preceding sections, 
except that it shall be done in a town meeting. In such 
town when a venire is served upon the selectmen they shall 
cause a town meeting to be notified and warned for that 
purpose in the manner ordered by the town or otherwise 
prescribed by law. 1 

19. The meeting for drawing jurors, whether the draft 
is made in town meeting or before the selectmen and town 
clerk only, shall be held not less than seven nor more than 
twenty-one days before the day when the jurors are re- 
quired to attend. 

20. The constable shall, four da}'s at least before the 
time when the jurors are required to attend, summon each 
person who is drawn, by reading to him the venire with 
the indorsement thereon of his having been drawn, or by 
leaving at his place of abode a written notification of his 
having been drawn, and of the time and place of the sitting 
of the court at which he is to attend, and shall make a 
return of the venire with his doings thereon to the clerk, 
before the opening of the court from which it was issued. 2 

It is not necessary that notice to jurors, who are drawn to assess 
damages caused by the laying out of a highway or railroad, should 
be served by a constable ; such notice may be served by the officer 
to whom the warrant for summoning a jury is directed. 3 

21. Grand jurors shall be drawn, summoned, and re- 
turned in the same manner as jurors for trials ; and when 
drawn at the same time with jurors for trials, the persons 
whose names are first drawn, to the number required, shall 
be returned as grand jurors, and those afterwards drawn 
shall be jurors for trials. 

22. In case of deficiency of grand jurors in any court, 
writs of venire facias may be issued to the constables of 
such cities or towns as the court may direct, to return 

i Gen. Stats, ch. 132, §§ 6-18. 3 Wyman v. Lexington, &c. R. R., 

2 Gen. Stats, ch. 132, §§ 19, 20. 13 Met. 316. 



jurors. 329 

forthwith such further number of grand jurors as may be 
required. 1 

23. If a person duly drawn and summoned to attend as 
a juror in any court neglects to attend without sufficient 
excuse, he shall pay a fine not exceeding forty dollars, 
which shall be imposed by the court to which the juror was 
summoned, and shall be paid into the county treasury. 

24. When, by neglect of any of the duties required in 
this chapter to be performed by any of the officers or per- 
sons herein mentioned, the jurors to be returned from 
any place are not duly drawn and summoned to attend the 
court, every person guilty of such neglect shall pay a fine 
not exceeding twenty dollars, to be imposed by the same 
court to the use of the county in which the offence is com- 
mitted. 

25. If such neglect occurs with regard to jurors required 
to serve on any other occasion than in the supreme judicial 
court, the superior court, or before any justice of the peace 
or police court, the sheriff or other officer before whom the 
jurors were required to appear shall make known the fact 
to the superior court next to be held in the same county, 
and the court, after due examination and a hearing of the 
parties who are charged, shall impose the fine. 

26. If any cit}' or town clerk, selectmen, ma}T>r, or 
alderman is guilty of fraud, either b}^ practising on the jury 
box previously to a draft, or in drawing a juror, or in re- 
turning into the box the name of an} 7 juror which had been 
lawfully drawn out and drawing or substituting another in 
his stead, or in any other way in the drawing of jurors, 
he shall be punished by a fine not exceeding five hundred 
dollars. 2 * 

27. Nothing contained in the foregoing shall affect the power and 
duty of coroners or magistrates to summon and empanel jurors when 
authorized by other provisions of law. 3 

i Gen. Stats, cli. 171, §§ 3, 4. 3 Gen. Stats, ch. 132, § 40. 

2 Gen. Stats, ch. 132, §§ 36-39. 



330 TOWN AND PARISH OFFICER. 



CHAPTER XXXIX. 

CENSUS. 

1 . A census of the inhabitants of each city and town in 
the commonwealth, on the first day of May, shall be taken 
in the year eighteen hundred and sixty-five, and in every 
tenth year thereafter, and shall contain a special enumera- 
tion of the legal voters residing in each town, and in each 
ward of the several cities. 

2. In taking the census, the following particulars shall 
be ascertained and enumerated, in separate columns of the 
schedule, to wit : — 

1. Dwelling-houses numbered in the order of visitation. 

2. Families numbered in the order of visitation. 

3. Name of each person in the family or dwelling. 

4. Age of each person one year old and upward. 

5. Sex of each person. 

6. Color of each person ; whether white, black, mulatto, 
or Indian. 

7. Place of birth ; naming state, territory, or country. 

8. Condition ; whether single, married, or widowed. 

9. Profession, trade, or occupation of every person over 
fifteen years of age. 

10. Persons over twenty years of age who cannot read 
and write. 

11. Whether deaf and dumb, blind,^ insane, idiotic, 
pauper, or convict. 

12. Ratable polls. 

13. Legal voters. 

14. Naturalized voters. 

3. The census shall be taken in cities by agents ap- 
pointed by the mayor and aldermen, and in towns by the 



CENSUS. 331 

selectmen, or by agents appointed by them. 1 Such select- 
men or agents shall be sworn, shall make out in words, at 
length, a return of the aggregates and results of said 
census, and shall sign and make oath to the truth thereof; 
and a certificate of the oath, by the magistrate administer- 
ing it, shall be annexed thereto. They shall, on or before 
the twentieth day of August of the same }'ear, deliver the 
return to the sheriff of the county, who shall transmit it to 
the office of the secretar}' of the commonwealth on or be- 
fore the last day of said August ; or the selectmen or 
agents ma} T themselves transmit the return to the office of 
the secretary on or before the day last named. 

'4. The secretary shall, on or before the first day of May 
in each year in which the census is to be taken, transmit 
to the clerks of the several cities and towns printed forms 
for the returns required by this act, with such instructions 
as he ma}- deem necessary, and a notice that the returns 
must be made into his office on or before the last day of 
August of the same } T ear. 

5. The secretary shall prepare an abstract from the 
census, showing the number of legal voters in each town, 
and in each ward of the several cities, arranged by coun- 
ties, and shall submit the same to the general court, within 
the first ten days of the annual session following the tak- 
ing of such census. 

6. If an}' selectman or agent wilfully refuses to perform 
any duty required of him by this act, he shall forfeit a sum 
not exceeding five hundred dollars ; and if he is guilty of 
wilful deceit and falsehood in the discharge of his duty, he 
shall forfeit a sum not exceeding two thousand dollars, or 
be imprisoned not exceeding one year. A sheriff who 
shall wilfully refuse or neglect to perform the duty re- 
quired b} T this act shall forfeit a sum not exceeding one 
thousand dollars. 2 

1 Stats. 1874, ch. 386, provides office of the secretary of the com- 

that the census shall be taken by monwealth; and so much of section 3 

such of the assessors of the several above as is inconsistent with said 

towns as the bureau of statistics of chapter 386 is repealed. 
labor shall appoint, and the returns 2 Stats. 1865, ch. 69. 
thereof shall be returned into the 



832 TOWN AND PARISH OFFICER. 



CHAPTER XL. 

WEIGHTS AND MEASURES. 

1. The weights, measures, and balances received from 
the United States, and now in the treasury of the common- 
wealth, to wit, one half-bushel, one wine gallon, one wine 
quart, one wine pint, one wine half-pint, one yard measure ; 
a set of avoirdupois weights, consisting of fifty, twenty-five, 
twenty, ten, five, four, three, two, and one pounds, and 
from eight ounces down to one drachm ; one set of troy 
weights, from five thousand pennyweights down to half a 
grain, and from one pound down to the ten-thousandth 
part of an ounce ; and three sets of balances : also the 
measures caused to be made by the treasurer and now in 
the treasury, to wit, one of eight quarts, one of four quarts, 
one of two quarts, and one of one quart, dry measure, 
shall be, remain, and be used as the sole authorized public 
standards of weights and measures. 

It is now lawful to use the weights and measures of the metric 
system. 1 

2. Such weights, measures, and balances as may be pro- 
cured from time to time to replace those before mentioned 
shall be preserved in the same form and of the same 
dimensions, the denominations of the weights and meas- 
ures being marked and stamped thereon respectively, and 
they shall be sealed with the seal which is kept for that 
purpose by the treasurer. 

3. The treasurer shall keep the authorized public stand- 
ard weights, measures, and balances, in the treasury, in his 
care and custody. He shall furnish duplicates thereof to 
a deputy appointed by him, who shall be sworn and give 

i Stats. 1877, ch. 40. 



WEIGHTS AND MEASURES. 333 

bond for the faithful discharge of the duties of his office. 
The duplicates shall be kept by the deputy, and used by 
him for sealing weights, measures, and balances, in like 
manner as the standards kept in the treasury may be used 
by the treasurer. 

4. The treasurer shall furnish to each town hereafter 
incorporated, at a cost not exceeding one hundred and 
fifty dollars, a complete set of standard weights, measures, 
and balances, such as have been furnished to other towns, 
made to conform as near as practicable to the models 
caused to be made by the treasurer as town standards. 
The expense of transportation shall be defrayed by the 
town. 

But no town shall be supplied the second time at the expense of 
the commonwealth, in case the weights, measures, or balances should 
be lost or destroyed. 1 

5. The several county, city, and town treasurers shall, 
at the expense of their respective counties, cities, and 
towns, provide therein places for the safe and suitable 
keeping and preservation of the weights, measures, and 
balances furnished by the commonwealth, which shall be 
used only as standards. They shall have the care and 
oversight thereof; shall see that they are kept in good 
order and repair ; and if any portion of them are lost, 
destroyed, or irreparably damaged, shall, at the expense 
of the county, city, or town, replace the same by similar 
weights, measures, or balances. 

6. Each treasurer who neglects to provide a suitable 
place for keeping such weights, measures, and balances, 
or to keep them in good order and repair, or who suffers 
any of them, through his neglect, to be lost, damaged, or 
destroyed, shall forfeit two hundred dollars, to be recovered 
by indictment. 

7. Each treasurer shall, once at least in every ten } T ears, 
have the standards in his custody tried, adjusted, and sealed 
by the treasurer of the commonwealth or his deputy ; the 

l Stats. 1877, ch. 150. 



334 TOWN AND PARISH OFFICER. 

expense whereof shall be paid b} T the respective counties, 
cities, and towns. Every treasurer who neglects to have 
the standards under his charge so sealed shall forfeit a sum 
not exceeding fifty dollars. 

8. When a city or town votes to have more than one 
sealer of weights and measures, the treasurer shall, at the 
expense thereof, procure and preserve the necessary addi- 
tional seals, weights, and measures, before specified ; so 
that each sealer may have a complete set of the same. 

9. Every sealer of weights and measures shall receive 
of the treasurer a set of the standards and seal, and shall 
give him a receipt therefor, expressing the condition in 
which the same are ; and he shall be accountable to the 
cit} T or town for the due preservation of the same in the 
like condition, until he redelivers them to the treasurer. 

10. The treasurer of the commonwealth and his deputy, 
the count}' treasurers, and the city and town sealers, shall 
each keep a seal for their several uses. The seals of the 
treasurer and of his deputy shall be the letters 0. M., 
those of county treasurers shall be the initial and final* 
letters of their respective counties, followed by the letters 
Co. ; those of city and town sealers, the name of their 
respective cities or towns, or such intelligible abbreviation 
thereof as the mayor and aldermen or selectmen may pre- 
scribe. 

11. Every sealer of weights and measures shall annually, 
in May, advertise in some newspaper, or post up notifica- 
tions in different parts of the city or town, for every in- 
habitant who uses weights and measures for the purpose 
of buying and selling, and for public weighers who have 
the same, to bring in their measures, weights, balances, 
scales, and beams, to be adjusted and sealed ; and he 
shall forthwith adjust and seal all weights and measures 
brought to him for that purpose (see section twenty-seven 
below) . 

12. The sealers of each city and town shall go annually 
to every hay scale or platform balance which cannot be 
readily removed, and try, adjust, and seal the same. 



WEIGHTS AND MEASURES. 335 

No sealer, except for the purposes of this section, shall 
carry his standards of weights, measures, or scales, from 
one place to another, for the purpose of adjusting others 
(see section twenty-seven below) . 

13. For every neglect of any duty prescribed in the 
three preceding sections, the sealer shall forfeit a sum not 
exceeding twenty dollars. 

14. Each sealer of weights and measures, including the 
deputy of the treasurer and county treasurers, shall re- 
ceive a fee of three cents for every weight, measure, scale, 
beam, or balance, by him sealdd, except platform balances. 
For sealing each platform balance weighing five thousand 
pounds and upwards, the sealer shall receive one dollar ; 
and for each platform balance weighing less, fifty cents. 
Every sealer shall also have a reasonable compensation for 
all repairs, alterations, and adjustments, which it is neces- 
sary for him to make (see section twentj'-seven below) . 

15. The vibrating steelyards which have been heretofore 
allowed and used in this State may continue to be used : 
provided, that each beam and the poises thereof shall be 
annually tried, proved, and sealed, by a sealer of weights 
and measures, like other beams and weights. 

16. Whoever sells by any other weights, measures, 
scales, beams, or balances, than those which have been 
sealed as before provided, shall forfeit a sum not exceed- 
ing twenty dollars for each offence ; and when by- the 
custom of trade they are provided by the buyer, if he 
purchases by any other weights, measures, scales, beams, 
or balances, he shall be subject to a like penalty, to be 
recovered by an action of tort to the use of the com- 
plainant. (But see section thirty-four. ) 

Where a sale is made in violation of this statute, no action can be 
maintained for the price of the goods sold. 1 

17. When commodities are sold by the hundred weight, 
it shall be understood to mean the net weight of all pack- 
ages from one to one hundred pounds avoirdupois ; and 

i Sawyer v. Smith, 109 Mass. 220. 



336 TOWN AND PARISH OFFICER. 

all contracts concerning goods sold by weight shall be 
understood and construed accordingly. 

18. Every public weigher of goods or commodities shall 
weigh the same according to the provisions of the pre- 
ceding section, and make his certificate accordingly ; and 
for each refusal or neglect he shall forfeit a sum not ex- 
ceeding ten dollars. Every weigher of goods appointed 
by a city or town, and every weigher for hire or reward, 
shall be deemed and taken to be a public weigher within 
the provisions of this section. 

19. In ever} 7 city and town* in which section twenty-three 
of chapter thirty of the Revised Statutes has been adopted 
according to the provisions thereof, or in which the pro- 
visions of this section shall be accepted by the city council 
of the city, or by the inhabitants of the town, at a legal 
meeting, every measure by which salt or grain is sold, in 
addition to being conformable in capacity and diameter to 
the public standards, shall have a bar of iron across the 
middle thereof at the top, to be approved by a sealer of 
weights and measures, and a bar or standard of iron from 
the centre of the first-mentioned bar to the centre of the 
bottom of the measure, to be approved in like manner ; 
and every such measure shall be filled by shovelling such 
salt or grain into the same, and the striking thereof shall 
always be lengthwise of the first described bar. And 
whoever sells or exposes to sale an} 7 salt or grain in any 
other measure, or fills or strikes such measure in any other 
manner than is provided in this section, shall forfeit fifty 
cents for every bushel of salt or grain so measured, filled, 
or stricken : provided, that salt may be measured from 
vessels in such measures as are used by the government 
of the United States, and that nothing contained in this 
section shall prevent the measuring of salt in tubs, or any 
proportional parts of hogsheads, without bars, as may be 
determined by any city or town. 1 

20. The respective sealers of weights and measures in 
the several cities and towns are authorized and required 

i Gen. Stats, ch. 51, §§ 1-19. 



WEIGHTS AND MEASURES. 337 

to go to the houses, stores, and shops of all such persons 
within their respective cities and towns, using weights and 
measures for the purpose of bming and selling, as shall 
neglect to bring in their weights, measures, milk-cans, 
balances, scales, and beams to be adjusted and sealed, and 
there, at the said houses, stores, and shops, having en- 
tered the same with the assent of the occupant thereof, to 
adjust and seal the same, or send the same to his office 
to be adjusted and sealed, and shall be entitled to receive 
therefor the fees provided by law, together with all the 
expense of removing the same (see section twenty-seven 
below) . 

21. If any such person shall refuse to have his measures, 
milk-cans, weights, balances, scales, or beams so tried, 
adjusted, and sealed, the same not having been tried, ad- 
justed, and sealed within one year preceding such refusal, 
he shall forfeit ten dollars for each offence, one-half to the 
use of the city or town, and one-half to the use of the 
sealer of weights and measures. 

22. If any person shall alter any weight, measure, milk- 
can, scale, balance, or beam, after the same shall have been 
adjusted and sealed, so that the same thereby shall not 
conform to the public standard, and shall fraudulently 
make use of the same, he shall forfeit, for each offence, the 
sum of fifty dollars, one-half to the use of the city or town, 
and one-half to the use of the complainant. And any 
sealer when he shall have reasonable cause to believe that 
any weight, measure, milk-can, scale, balance, or beam has 
been altered since the same was last adjusted and sealed, 
is authorized and required to enter the premises in which 
any such weight, measure, milk-can, scale, balance, or beam 
is kept or used, and examine the same. 

23. The city council of any city may by ordinance, and 
any town may by by-law, provide that the sealer of weights 
and measures for their respective city or town be paid by 
a salary, and that he account for and pay into the treasury 
of the city or town the fees received by him by virtue of 
his office. 

22 



338 TOWN AND PARISH OFFICER. 

24. The mayor and aldermen of any city are authorized 
to remove the sealer of weights and measures at any time 
they may see fit. 

25. No milk-can shall be sealed by any sealer, which 
does not contain one or more quarts without any fractional 
part of a quart. 

26. This act (six preceding sections) shall not take 
effect in any city or town until it shall have been accepted 
by the city council of such city, or by the inhabitants of 
such town, at a legal meeting. 1 

27. The sealers of weights and measures in the several cities and 
towns shall annually give public notice by advertisement, or by post- 
ing notice in one or more public places in their respective cities and 
towns, to all inhabitants or persons having a usual place of business 
therein, who use scales, weights, measures, or milk-cans for the pur- 
pose of selling any goods, wares, merchandise, or other commodities, 
or for public weighing, to bring in their scales, weights, measures, 
and milk-cans to be adjusted and sealed, and such sealers shall attend 
in one or more convenient place or places, and shall adjust, seal, and 
record all scales, weights, measures, and milk-cans so brought in. 

In those cities or towns where a salary is paid to sealers of weights 
and measures, no fees shall be charged for such services. In other 
cities and towns, the said sealers shall receive the compensation 
set forth in section fourteen of chapter fifty-one of the General 
Statutes. 

At any time after said notice, 2 the said sealers of weights and 
measures shall go to the houses, stores, and shops of persons men- 
tioned in the foregoing section who have neglected to comply with 
the notice given thereunder, and having entered the same, with the 
assent of the occupants thereof, shall adjust and seal their scales, 
weights, measures, and milk-cans, and shall be entitled to receive 
for said service the compensation set forth in said section fourteen. 

The said sealers of weights and measures shall go once a year, 
and oftener if necessary, to every hay and coal scale, dormant or 
other platform balance, within their respective cities and towns, that 
cannot be easily or conveniently removed, and test the accuracy of 
and adjust and seal the same, and shall receive therefor the compen- 
sation set forth in said section fourteen. 

All persons using any scales, weights, measures, or milk-cans for 
the purpose of buying or selling any commodity, may have the 
same tested and sealed by the sealers of weights and measures, at 

i Stats. 1863, ch. 179, §§ 1-7. 2 Stats. 1877, ch. 151, § 2. 



WEIGHTS AND MEASURES. 339 

the office of any of said sealers, whenever such persons desire to have 
it done. 

Whenever a complaint is made to a sealer of weights and meas- 
ures by any person, that he has reasonable cause to believe, or 
whenever a sealer of weights and measures shall himself have rea- 
sonable cause to believe, that any scale, weight, measure, or milk- 
can used in the sale of any commodity within the city or town is 
incorrect, the said sealer shall go the place where such scale, weight, 
measure, or milk-can is, and test and mark the same according to the 
result of the test applied thereto ; and if the same be incorrect and 
cannot be adjusted, the said sealer shall attach a notice thereto, cer- 
tifying the fact, and forbidding the use thereof until the same has 
been made to conform to the authorized standard. Any person using 
any scales, weights, measures, or milk-cans after a sealer of weights 
and measures has demanded permission to test the same, and has been 
refused such permission, shall be liable to a penalty of not less than 
ten nor more than one hundred dollars. 

All scales, weights, measures, and milk-cans that cannot be made 
to conform to the standard, shall be stamped " condemned " or 
" C. D." by the sealer of weights and measures ; and no person shall 
thereafter use the same for weighing or measuring any commodity 
sold or exchanged, under the penalties provided in the case of the 
use of false weights and measures. 

If any person shall knowingly use any false weight, measure, 
milk-can, scale, balance, or beam, or shall alter any weight, measure, 
milk-can, scale, balance, or beam after the same shall have been ad- 
justed and sealed, so that the same thereby shall not conform to the 
public standard, and shall fraudulently make use of the same, he 
shall forfeit for each offence the sum of fifty dollars, one-half to the 
use of the city or town, and one-half to the use of the complainant. 
And any sealer, when he shall have reasonable cause to believe that 
any weight, measure, milk-can, scale, balance, or beam has been 
altered since the same was last adjusted and sealed, is authorized 
and required to enter the premises in which such weight, measure, 
milk-can, scale, balance, or beam is kept or used, and examine the 
same. 

The city council of any city may by ordinance, and any town 
may by by-law, provide that the sealers of weights and measures for 
their respective city or town be paid by a salary, and that they ac- 
count for and pay into the treasury of the city or town the fees re- 
ceived by them by virtue of their office. 1 

28. Instead of appointing more than one sealer of 
weights and measures, the mayor and aldermen of any 
city and the selectmen of any town, where it may be 

1 Stats. 1876, ch. 123. 



340 TOWN AND PARISH OFFICER. 

necessary for the proper discharge of the duties of such 
office, shall appoint annually one or more deput} r - sealers, 
who shall act under the direction of the sealer ; and the 
mayor and aldermen of cities and the selectmen of towns 
are authorized to remove the sealer or deputy-sealers of 
weights and measures in such city or town whenever they 
may deem it expedient. 

29. In case any sealer of weights and measures cannot 
seal an} T scales, weights, and measures with the stamp as 
now provided by law, he may mark them with a stencil or 
other suitable means, so as to show they have been in- 
spected ; but he shall in no case seal or mark as correct 
any weights, scales, or measures which do not conform to 
the standards ; if such scales, weights, or measures can 
be readily adjusted by such means as he has at hand, he 
may adjust and seal them ; but if they cannot be readily 
adjusted, he shall affix to such scales, weights, or meas- 
ures a notice forbidding their use until he is satisfied that 
they have been so adjusted as to conform to the standards ; 
and whoever removes said notice without the consent of 
the officer affixing said notice shall, for each offence, for- 
feit a sum not exceeding fifty dollars, one-half to the use 
of the city or town, and one-half to the use of the com- 
plainant. 

30. Whenever visiting the place of business of any per- 
son for the purpose of testing any scales, weights, and 
measures, the sealer or his deputy is hereby authorized to 
use for that purpose such scales, weights, or measures as 
he can conveniently carry with him ; and each city and 
town shall furnish, for the purposes of this act, the sealer 
of weights and measures with one or more duplicate sets of 
scales, weights, and measures, which shall at all times be 
kept to conform to the standards furnished by the common- 
wealth ; and all such scales, weights, and measures so 
sealed shall be deemed legally sealed, the same as if tested 
and sealed with the standard scales, weights, and meas- 
ures. 

31. Any sealer or deputy-sealer of weights and meas- 



WEIGHTS AND MEASURES. 341 

ures is authorized to seize without a warrant such scales, 
weights, or measures as may be necessary to be used as 
evidence in cases of violation of this or any act relating to 
the sealing of weights and measures ; such scales, weights, 
or measures to be returned to the owners or be forfeited, 
as the court may direct. 

32. All provisions of law requiring the sealing of milk- 
cans, and acts and parts of acts inconsistent herewith, are 
hereby repealed : provided, however, this repeal shall not 
affect any suit or legal proceedings now pending, or any 
liabilities or penalties already incurred. 1 

33. All apparatus for linear measurements used by any 
land surveyor shall be tested and proved once in each year 
by the sealer of weights and measures in the town where 
such surveyor resides, or where he has his business office ; 
and all chains, tapes, or other implements used for linear 
measurements, that cannot be made to conform to the 
standard, shall be marked u condemned" or " C. D." by 
the sealer of weights and measures, and no surveyor shall 
thereafter use the same for measuring land, under the 
penalty of twenty dollars for each offence. The selectmen 
of any town may, if in their judgment they shall deem it 
expedient so to do, appoint any suitable and competent 
person, other than the sealer of weights and measures, to 
test and prove such measuring implements used by land 
surveyors. In all cases, the standards used for such tests 
shall be based upon and shall correspond to the standards 
furnished by the state to sealers of weights and measures. 
The fee for such testing- and proof of such article of appa- 
ratus shall be twenty- five cents, to be paid by the person 
presenting the apparatus for test. 2 

34. Whenever a sale is made of goods, wares, or mer- 
chandise of any kind, and the same are weighed or measured 
for the purpose of such sale upon scales, measures, weights, 
beams, or balances not sealed according to law, or are 
weighed or measured by a person not a sworn weigher or 

1 Stats. 1877, ch. 151. 2 stats. 1871, ch. 330. 



342 TOWN AND PARISH OFFICER. 

measurer, or by a person not a sworn weigher or measurer 
within the city or town where such sale is made, the seller 
may nevertheless recover the fair market value of such 
goods, wares, or merchandise : provided, said sale is made 
in good faith, and the purchaser is not injured thereby. 1 

i Stats. 1875, ch. 153. 



INSPECTION AND SALE OF ARTICLES. 343 



CHAPTER XLI. 

INSPECTION AND SALE OF ARTICLES. 

1. The mayor and aldermen and selectmen of each city 
and town where beef cattle are sold for the purpose of 
market or barrelling, shall appoint one or more persons, 
conveniently situated in such city or town, and not dealers 
in cattle, to be weighers of beef ; who shall be sworn. 

2. The fees for weighing shall be as follows : For weigh- 
ing any number of cattle not exceeding five, twenty cents 
each ; for all above five and not exceeding ten, fifteen 
cents each ; for all above ten and not exceeding twenty, 
ten cents each ; for all above twenty, five cents each after 
the first twenty ; and twelve and a half cents for each 
certificate, which shall contain the several weights of all 
the cattle offered for weight by one person, unless other- 
wise regulated by the seller thereof ; which shall be paid 
by the seller. 

3. In all contracts for the sale and delivery of wheat, 
corn, rye, oats, barley, buckwheat, cracked corn, ground 
corn or corn meal, ground rye or rye meal, and any other 
meal except oatmeal, the same shall be bargained for and 
sold by the bushel. 1 

This statute prohibits the selling of these articles by the bag, and 
consequently the seller cannot receive the price unless sold by the 
bushel. 2 

4. The provisions relating to certain sales do not apply to sales 
made out of the commonwealth, although the articles sold are in the 
commonwealth at the time of sale. 3 

5 . A bushel of wheat shall be sixty pounds ; a bushel 
of corn or rye, fifty- six pounds ; a bushel of oats, thirty- 
two pounds ; a bushel of barley or buckwheat, forty-eight 
pounds ; and a bushel of cracked corn, corn meal, rye 

1 Gen. Stats, ch. 49, §§ 3, 4, 63. 3 Hardy v. Potter, 10 Gray, 89. 

2 Eaton v. Kegan, 114 Mass. 434. 



344 TOWN AND PARISH OFFICER. 

meal, or any other meal except oatmeal, fifty pounds 
avoirdupois. 

6. The mayor and aldermen of cities and selectmen of 
towns shall annually appoint one or more measurers of 
grain ; and when but one is appointed by them, they may 
authorize him to appoint deputy-measurers. Each of such 
measurers and deputies shall, when called upon by either 
of the parties to a contract for the sale of any quantity 
exceeding one bushel of either of the articles mentioned 
in the preceding section, ascertain the weight thereof, and 
give a certificate of the number of bushels as ascertained 
by weight according to the rule therein prescribed. 

7. Whoever sells or delivers any quantity exceeding one 
bushel of either of the articles aforesaid, without the same 
having been weighed b}^ one of the public measurers ap- 
pointed under the preceding section, shall forfeit the sum 
of two dollars for every measured bushel so delivered not 
containing the number of pounds herein before required, to 
be recovered by the purchaser in an action of tort. 

8. The fees of such measurers shall be prescribed by 
the mayor and aldermen or the selectmen of the several 
places in which they are appointed, and shall be paid one- 
half by the seller and one-half by the purchaser. 

9. If a measurer or deputy-measurer uses, or has in his 
possession with intent to use, for the purposes herein pro- 
vided, any false weights, scales, balance, or other instru- 
ment for weighing, or colludes with the purchaser or seller 
with intent to defraud the other party, or makes and utters 
a false and fraudulent certificate under this chapter, he 
may be removed from office by the mayor and aldermen 
or selectmen, and shall also, on conviction thereof, be 
punished by a fine not exceeding five hundred dollars and 
by imprisonment not exceeding six months in the house of 
correction. 1 

10. In cities in which the city council and in towns in 
which the inhabitants shall adopt this and the three fol- 
lowing sections, the mayor and aldermen and selectmen 

i Gen. Stats, ch. 49, §S 64-68. 



INSPECTION AND SALE OF ARTICLES. 345 

may from time to time appoint, for a term not exceeding 
one year, some person or persons to have the superin- 
tendence of the hay scales belonging to their place, who 
shall weigh hay offered for sale therein, and any other 
article offered to be weighed. 

11. The persons so appointed shall conform to all such 
rules and regulations as shall be established by the city 
council or selectmen respectively, concerning the hay scales, 
and the compensation or fees for weighing hay and other 
articles. 

12. The ma}'or and aldermen or selectmen may remove 
any weigher of ha}', and fill any vacancy that may occur 
from death or otherwise. 1 

13. Pressed hay offered for sale without being so 
branded shall be forfeited, one-half to the person or per- 
sons prosecuting therefor, and the other half to the use 
of the city or town where the same is so offered for sale, 
and may be seized and libelled. 2 

14. The mayor and aldermen and selectmen of each -city 
and town in which bale or bundle hay is sold may, on the 
petition of ten or more legal voters of such city or town, 
annually appoint one or more persons as inspectors of bale 
or bundle hay, who shall be sworn ; and may remove any 
inspector so appointed, and fill an} T vacancy that may occur 
from death or otherwise. 

15. Each inspector shall inspect and weigh all bale or 
bundle hay within the limits of the city, town, or ward, for 
which he may be appointed, when requested so to do by 
the owner or vendor. 

16. Bales or bundles of hay so inspected which are 
found to be sweet, of good quality, and free from dam- 
age or improper mixture, shall be branded or marked 
No. 1. Bales or bundles found to be sweet, and free 
from damage or improper mixture, but consisting of hay 
of a secondary quality, shall be branded or marked No. 2. 

1 Gen. Stats, ch. 49, §§ 72-74. ing hay, but section 76 was repealed, 

2 This is section 77 of ch. 49, Gen. Stats. 1878, ch. 146. 
Stats. Section 76 provides for brand- 



346 TOWN AND PARISH OFFICER. 

Bales or bundles found to be wet, or in any way damaged, 
or which shall contain straw or other substances not valua- 
ble as hay, shall be branded or marked bad. Each bale or 
bundle so inspected shall be branded or marked with the 
first letter of the christian name and the whole of the sur- 
name of the inspector, and the name of the place for which 
he is inspector, together with the month and year when 
inspected, and also the net weight of the bundle. 

17. Each inspector shall furnish himself with proper 
scales, weights, seals, and other suitable instruments, for 
the purposes aforesaid. 

18. The fees for inspecting, weighing, and marking hay, 
as provided for in this chapter, shall be fixed by the re- 
spective officers having the power of appointment, and 
shall be paid by the employer of the inspector. 

19. Whoever sells bale or bundle hay in a place where 
an inspector is appointed, which has not been inspected 
and weighed as herein provided, shall forfeit for each bale 
or bundle so sold two dollars ; but no inspection need be 
made where the vendor and vendee agree to waive an 
inspection. 1 

20. The provisions relating to the inspection, weighing, 
branding, and sale of pressed or bundled hay shall also 
apply to pressed or bundled straw. 2 

21. In every maritime place from which staves are 
usually exported, there shall be annually chosen two or 
more suitable persons to be viewers and cullers of staves 
and hoops, who shall be sworn. 

22. White oak butt staves shall be at least five feet in 
length, five inches wide, and one inch and a quarter thick 
on the heart or thinnest edge and every part thereof; 
white oak pipe staves shall be at least four feet and eight 
inches in length, four inches broad in the narrowest part, 
and not less than three-quarters of an inch thick on the 
heart or thinnest edge ; white oak and red oak hogshead 
staves shall be at least forty- two inches long, and not less 
than half an inch thick on the heart or thinnest edge ; 

1 Gen. Stats, ch. 49, §§ 77-83. 2 stats. 1861, ch. 67. 



INSPECTION AND SALE OP ARTICLES. 347 

white oak and red oak barrel staves for foreign market 
shall be thirty-two inches long, and for home use thirty 
inches long, and shall average half an inch thick on the 
heart or thinnest edge ; white oak and red oak hogshead and 
barrel staves shall be at least four inches in breadth, and 
none less than three inches in breadth in the narrowest part, 
and those of the breadth last mentioned shall be clear of 
sap ; and all staves shall be well and proportionably split. 1 

23. Hogshead hoops that are exposed to sale or ex- 
ported shall be from ten to fourteen feet in length, of 
white oak or walnut, of good and sufficient substance, and 
well shaved, and shall not be less than one inch broad at 
the least end ; each bundle shall consist of twenty-five 
hoops, and all hoops of ten, twelve, and fourteen feet re- 
spectively shall be made up in distinct bundles by them- 
selves. If hoops of less dimensions than those prescribed 
by law stre packed, or if a bundle contains less than 
twenty-five hoops, the bundle shall be forfeited, and may 
be seized by the culler of hoops and libelled for the benefit 
of the place where it is offered for sale. 2 

24. Cullers shall be allowed for their time and services, 
fifty cents a thousand for hoops, twenty-eight cents a 
thousand for barrel staves, thirty-three cents a thousand 
for hogshead staves, forty cents a thousand for pipe staves, 
and forty-four cents a thousand for butt staves, as well 
refuse as merchantable ; the merchantable to be paid for by 
the bm^er, the refuse by the seller. 

25. If a culler connives at or is guilty of fraud in culling 
staves or hoops, he shall forfeit fifty dollars for each 
offence ; and if he refuses to perform service when re- 
quested shall forfeit five dollars. 3 

26. Each city and town in which lime is manufactured, or 
into which it is imported, may annually choose one or more 
inspectors of lime, who shall be sworn, and shall inspect 
all lime manufactured in such place at the time when it is 
filled at the kiln, and all lime imported or sold therein. 

1 Gen. Stats, ch. 49, §§ 84-85. 3 Gen. Stats, ch. 49, §§ 86-88. 

2 Stats. 1878, ch. 116. 



348 TOWN AND PARISH OFFICER. 

27. Every cask of lime so inspect cm] shall be branded 
with the word inspected* with the first letter of the christian 
name and the whole of the surname of the inspector, and 
with the name of the place where it is manufactured. 

28. The inspectors shall receive, lor the inspection and 
branding of each cask of such manufactured lime, four 
cents, to be paid by the manufacturer or owner; and for 
the inspection of each cask of lime so imported or sold, the 
same sum, to be paid by the purchaser. 

29. No stone lime manufactured within this state shall 
be sold or exposed to sale, or shipped on board of a vessel, 
in casks, unless it is well burnt and pure, in good and 
sufficient new casks, containing either fifty or one hundred 
gallons each, made of well-seasoned heads and staves, 

with ten '^nnl and sufficient hoops on each cask, well driven 
and sufficiently secured with nails or pins. 1 

30. When an inspection is demanded of lime manufactured 
in and imported from the state of Maine, the inspector 
shall require that such lime be in casks manufactured from 
sound and well seasoned lumber, with staves and headings 
well fixed on the inside, with at least eight good and strong 
hoops on each ; all of wmich hoops shall be of oak, ash, 
beech, birch, maple, cherry, or elm wood, well driven and 
secured with nails ; the staves of said casks to be made of 
sawed or rift timber, not less than thirty inches in length, 
and half an inch thick on the thinnest edge ; each of the 
heads to be not less than three-fourths of an inch thick, 
and well crozed in ; each hoop to be not less than one inch 
wide in the narrowest part, and each cask to be not less 
than twenty-six inches in length between the heads, six- 
teen inches in width between the chimes, and eighteen 
inches in the clear on the inside at the bilge, and made in 
a workmanlike manner ; and the same rules, regulations, 
restrictions, and liabilities shall apply to lime imported from 
the state of Maine as are provided respecting lime manu- 
factured in this state. 2 

i Gen. Stats, ch. 49, §§ 118-121. 2 stats. 1878, ch. 71. 



INSPECTION AND SALE OF ARTICLES. 349 

31. Whoever sells, exposes to sale, ships, or receives on 
board of a vessel, in casks, any lime manufactured within 
this state, or the state of Maine, other than such as is con- 
tained in casks made according to the provisions of the 
preceding sections, and having the aforesaid marks or 
brands respectively, shall forfeit one dollar and fifty cents 
for each cask sold, offered for sale, shipped, or received on 
board of a vessel : provided, that nothing contained in this 
chapter shall be construed to restrain any person from re- 
tailing lime by the bushel, or other quantities not in casks. 

32. If a cask of lime is sold, or exposed to sale, or put 
on board of a vessel, contrary to the provisions of this 
chapter, the same shall be forfeited, and an inspector may 
seize and libel the same. 

33. If, after a cask containing lime has been branded as 
aforesaid, any person shifts the contents of such cask and 
puts therein other lime with intent to sell the same, he 
shall forfeit one dollar and fifty cents for each cask of lime 
so shifted. 1 

34. The mayor and aldermen or selectmen of any place, 
when thereto requested by two or more citizens thereof, 
shall annually in April appoint one or more persons as 
measurers of upper leather, who shall be sworn. 2 

35. Each measurer who is appointed a measurer of 
upper leather for one place in a county may, upon appli- 
cation made to him, measure and seal leather in any other 
place of the same county, when there is no measurer in 
such other place ; and he shall, upon the like application, 
measure and seal leather in any. place of an adjoining 
county, when there is no measurer appointed in such ad- 
joining county. 3 

36. Each measurer shall furnish himself with proper 
racks or measures, and suitable seals ; shall, when re- 
quested, go to an} T place within the city or town for which 
he is appointed measurer, and there ascertain the number 
of square feet in each side of upper leather made of the 

i Gen. Stats, cb. 40, §§ 123-125. 3 Stats. 1866, ch. 236, § 2. 

2 Gen. Stats, ch. 49, § 112. 



350 TOWN AND PARISH OFFICER. 

hides of neat cattle, buffalo, or other animal, usually here- 
tofore sold b}^ measure, except such as shall have been 
previously measured and sealed by a measurer of some 
place in this state, or by some person lawfully appointed 
for that purpose in another of the United States ; and 
shall seal the same, impressing thereon his name and 
the name of the place for which he is a measurer, at 
full length, and the measure thereof in square feet, as low- 
as a quarter. 1 u No such upper leather, except what has 
been previously measured and sealed by one of the meas- 
urers of this state, or by some measurer lawfully appointed 
for that purpose in some other of the United States, shall 
be sold for any purpose whatsoever, until it has been 
measured and sealed ; and whoever sells such upper leather 
not measured and sealed as aforesaid, shall forfeit one 
dollar for each side of leather so sold ; and such forfeiture 
may, in addition to the methods now provided, be recov- 
ered b} T an action at law in favor of any person injured by 
the sale of such leather not so measured and sealed. " 2 

37. Every measurer shall be paid for measuring and 
sealing each side of upper leather the sum of one cent, 
which shall be paid by the person who requests him to 
measure and seal the same. 

38. Whoever counterfeits, wilfully alters, or defaces 
such marks on any side of upper leather so measured, shall 
for each offence forfeit the sum of twenty- five dollars. 8 

39. The b,uyer and manufacturer of leather may, by 
agreement, waive inspection, measurement, and sealing of 
leather as provided in this act (section thirty-five and part 
of thirty-six above) . 4 

40. The jrsljoy and aldermen and selectmen of a city 
or town may establish such regulations, with suitable 
penalties, respecting the appointment of a surveyor, and 
the survey and admeasurement of marble of every descrip- 
tion (soapstone and free stone) , 5 foreign or American, that 

1 Gen. Stats, ch. 49, § 113. * stats. 1866, ch. 236, § 1. 

2 Stats. 1866, ch. 236, § 3. 5 Stats. 1862, ch. 70. 

3 Gen. Stats, ch. 49, §§ 114, 115. 



INSPECTION AND SALE OF ARTICLES. 351 

is imported or brought into such place for sale, as they from 
time to time deem expedient. 1 

41. The mayor and aldermen of cities shall, and the 
selectmen of towns may, annually appoint one or more per- 
sons to be inspectors of milk for their respective places, 
who shall, before entering upon the duties of their offices, 
be sworn. Each inspector shall give notice of his appoint- 
ment by publishing the same two weeks in a newspaper 
published in his city or town ; or, if no newspaper is pub- 
lished therein, by posting up such notice in two or more 
public places in such city or town. 

42. The inspectors shall keep an office and books for the 
purpose of recording the names and places of business of 
all persons engaged in the sale of milk within their limits. 
They ma}' enter any place where milk is stored or kept for 
sale, and all carriages used in the conveyance of milk ; and 
whenever they have reason to believe any milk found 
therein is adulterated, they shall take specimens thereof 
and cause the same to be analyzed, or otherwise satisfac- 
torily tested, the result of which they shall record and 
preserve as evidence ; and a certificate of such result, sworn 
to hj the analyzer, shall be admissible in evidence in all 
prosecutions under this act. The inspectors shall receive 
such compensation as the mayor and aldermen or select- 
men shall determine. All measures, cans, or other vessels 
used in the sale, or buying at wholesale, of milk, shall be 
annually sealed by the sealer of weights and measures, by- 
wine measure ; and all cans so used shall be marked hy the 
sealer with figures showing the quantity which they hold. 
(All acts and parts of acts which require the sealing of cans 
in which milk is transported or sold are hereb}' repealed.) 

43. Whoever neglects to cause his name and place of 
business to be recorded in the inspector's books, and his 
name legibly placed upon all carriages used by him in the 
conveyance of milk, before engaging in the sale thereof, 
shall forfeit twenty dollars for the first offence, and for 
a second and each subsequent offence, fifty dollars. And 

i Gen. Stats, ch. 49, § 145. 2 gtats. 1867, ch. 204. 



352 TOWN AND PARISH OFFICER. 

whoever offers for sale milk produced from cows fed upon 
the refuse of distilleries, or any substance deleterious to 
the qualit} T of the milk, or whoever knowingly offers for 
sale milk produced from sick or diseased cows, shall for- 
feit twenty-five dollars for the first, and fift} r dollars 
for every subsequent, offence. Whoever sells, or keeps, 
or offers for sale, adulterated milk, or milk to which 
water or an}' foreign substance has been added, shall for 
the first offence be punished by a fine of twent}^ dollars, 
and for a second offence by a fine of fifty dollars ; and for 
any subsequent violation he shall be imprisoned in the 
house of correction not less than thirty, nor more than 
ninety days ; and whoever, in the emplo} T ment of another, 
knowingly violates any provision of this section, shall be 
held equally guilty with the principal, and suffer the same 
penalty. 

An} T person who shall sell, or shall offer for sale, any 
milk, knowing that the cream or any part thereof has been 
removed therefrom, or who shall with such knowledge de- 
liver any such milk to any person to be made into butter 
or cheese, without giving notice at the time to the person 
to whom such milk is sold, offered for sale, or delivered, 
that such cream has been removed, shall be punished by a 
fine of not less than twenty dollars nor more than one 
hundred dollars. 1 

44. It shall be the duty of the inspector to cause the 
name and place of business of all persons convicted under 
the preceding section, to be published in two newspapers 
printed in the town or county where the offence may have 
been committed. 2 

45. Whoever sells or exchanges, or has in his possession 
with intent to sell or exchange, or offers for sale or ex- 
change, adulterated milk, or milk to which water or any 
foreign substance has been added, shall, for each offence, 
be punished by a fine of not less than twenty no more than 
one hundred dollars. 

46. Whoever adulterates, by water or otherwise, milk to 

1 Stats. 1870, ch. 3il. 2 stats. 1864, ch. 122. 



INSPECTION AND SALE OF ARTICLES. 353 

be delivered for manufacture into butter or cheese, shall be 
liable to the penalties provided in the preceding section. 

47. It shall be the duty of every inspector of milk to in- 
stitute complaint, on the information of any person who 
shall lay before him satisfactory evidence on which to sus- 
tain the same. 

48. Each inspector of milk in this commonwealth is here- 
by required to cause the provisions of this act to be pub- 
lished in his town, at least three times, by publication in 
some newspaper printed in said town, or some newspaper 
in the count}' in which the town is situated. 1 

49. Cord wood exposed for sale shall be either four, 
three, or two feet long, including half the kerf; and the 
wood, being well and close laid together, shall measure in 
quantity equal to a cord of eight feet in length, four in 
width, and four in height. 

50. If any fire wood or bark exposed to sale in a market, 
or upon a cart or other vehicle, is offered for sale before 
the same has been measured by a public measurer of wood 
and bark, and a ticket thereof signed by him delivered to 
the driver, certifying the quantity which the load contains, 
the name of the driver, and the place in which he resides, 
the driver and owner shall, for each load thereof, severally 
forfeit the sum of five dollars. 2 

This section does not apply to a sale of bark on the owner's land 
in the country. 3 

51. The measurers of wood and bark in any place shall 
be entitled to such fees for their services as the mayor and 
aldermen or selectmen shall establish ; and the fees shall in 
each case be paid to the measurer by the driver, and shall 
be repaid by the purchaser. 

52. Cord wood brought by water into a place for sale, 
and landed, shall be measured by a public measurer ; and 
for that purpose the wood shall be corded and piled by 
itself in ranges, making up in height what shall be wanting 

1 Stats. 1869, ch. 150. 3 Huntington v. Knox, 7 Cush. 

2 Gen. Stats, ch. 49, §§ 181, 182. 371. 

23 



354 TOWN AND PARISH OFFICER. 

in length, and being so measured, a ticket shall be given 
to the purchaser, who shall pay the stated fees for such 
service. But cities and towns may establish ordinances 
and regulations, with suitable penalties, for the inspection, 
surve}', admeasurement, and sale of wood, coal, and bark 
for fuel, brought into such places for sale, and may also 
provide for the appointment of such surveyors, inspectors, 
and other officers, and establish their fees of office. 

53. Each wharfinger, carter, or driver, who conveys any 
firewood or bark from a wharf or landing-place, shall be 
furnished by the owner or seller with a ticket certifying the 
quantity which the load contains and the name of the 
driver ; and if firewood or bark is thus conveyed without 
such ticket accompanying the same, or if a driver refuses 
to produce and show such ticket on demand to an}' sworn 
measurer, or to give his consent to have the same measured, 
or if such ticket certifies a greater quantity of wood or bark 
than the load contains, in the opinion of the measurer after 
measuring the same, the driver and owner shall for each 
load thereof forfeit the sum of five dollars. But nothing 
contained in this chapter shall be construed to extend to a 
person who transports, carts, or causes to be transported or 
carted, from a wharf or landing-place to his own dwelling- 
house or store, cord wood or bark which he has purchased 
on a wmarf or landing-place, or has landed thereon upon 
his own account. 

54. The city council of a city may establish ordinances 
and regulations, with suitable penalties, for the inspection, 
survey, admeasurement, and sale of bark for fuel or manu- 
facturing purposes brought into said city for sale, whether 
the same is exposed for sale in ranges or upon a cart or 
other vehicle ; and said city ma}^ provide for the appoint- 
ment of such surveyors, inspectors, and other officers, as 
may be necessary to carry into effect said ordinances, and 
may establish their fees : provided, that no penalt}' for any 
one violation shall exceed the sum of five dollars. 1 

55. All anthracite, bituminous, or mineral coal shall 

1 Gen. Stats, ch. 49, §§ 183-186. 



INSPECTION AND SALE OF ARTICLES. 355 

hereafter be sold by weight, and, except when sold by the 
cargo, two thousand pounds avoirdupois shall be the stand- 
ard for the ton by which the same shall be weighed and 
sold. 

56. The mayor and aldermen or selectmen of every place 
where such coal is sold shall appoint suitable persons, one 
or more of whom shall not be engaged in the business of 
selling coal, to be weighers of coal, who shall be sworn, 
and be removable at the pleasure of the board appointing 
them, and all coal shall be weighed by such sworn weighers. 

57. On or before the delivery of any such coal to a pur- 
chaser, the seller shall cause the same to be weighed by a 
sworn weigher of the place in w T hich the same is sold or 
delivered, who shall keep a record thereof for the use of 
both parties, and a certificate of the weight thereof, signed 
by such weigher, when so requested, shall be delivered to 
the purchaser or his agent at the time of the delivery of 
the coal. 

58. When the purchaser of coal, in quantities of five 
hundred pounds or more, shall so request before the deliv- 
ery thereof, the seller shall cause the same to be weighed 
by a sworn weigher, not the seller nor in his employ, and 
not engaged in the business of selling coal, and a certifi- 
cate of the weight thereof shall be delivered, signed by such 
weigher, to the purchaser or his agent, at the time of the 
delivery of the coal. The fees for such weighing to be 
paid by the purchaser. 

59. Any fraud or deceit in the weight of coal, on the 
part of the seller or those employed by him to sell, weigh, 
or deliver the same, shall be punishable by a fine of not 
less than twenty-five dollars, and not more than seventy- 
five dollars for each offence. 

60. Whoever violates any of the provisions of the first, 
second, third, and fourth sections of this act (sections fifty- 
five to fifty-eight inclusive), shall be punished by a fine 
of not less than twenty-five dollars, and not more than 
seventy-five dollars for each offence. 1 

1 Stats. 1870, ch. 205. 



356 TOWN AND PARISH OFFICER. 

61. In the sale of charcoal, the baskets, tubs, or vessels 
used in measuring the same, except as hereinafter provided, 
shall be of a c}iindrical form and of the following dimen- 
sions in the inside thereof, to wit : nineteen inches ir 
diameter in every part and eighteen inches and one-tenth 
of an inch in depth, measured from the highest part of the 
bottom thereof ; each of which shall be deemed to be of the 
capacuy of two bushels, and shall be filled level full ; and 
every such vessel shall be sealed by a sealer of the place 
in which the person using the same shall usually reside or 
do business. 

62. Charcoal may be measured in boxes, bins, or cans, 
of the following capacities, to wit : of five, ten, twenty, 
thirty, forty, or fifty bushels, such boxes, bins, or cans 
being first lawfully sealed as aforesaid ; and five thousand 
one hundred and thirty-two cubic inches shall be deemed 
equal to two bushels, or the level basket, tub, or vessel 
described in the preceding section. 

63. Every vendor of charcoal, who has in his possession 
any basket, tub, box, bin, vessel, or measure of less dimen- 
sions than those required by the two preceding sections, or 
not sealed as therein provided, with intent to use the same 
or permit the same to be used for measuring charcoal, sold 
or agreed to be sold, shall forfeit ten dollars for every such 
measure in his possession. And every person who meas- 
ures, in any such basket, vessel, or measure, any char- 
coal sold or offered for sale, unless by special agreement 
of the buyer and seller, shall forfeit a sum not exceeding 
one dollar for every two bushels so measured or pretended 
to be measured, and such basket, vessel, or measure shall 
be destroyed. 

64. The mayor and aldermen or selectmen of every place 
shall appoint one or more suitable persons to seize all 
baskets, vessels, or measures used or intended to be used 
for measuring charcoal, and not conforming to the fore- 
going provisions ; and to arrest without warrant any person 
having in his possession such baskets, vessels, or measures, 
and take him and them before the proper tribunal for pros- 



INSPECTION AND SALE OF ARTICLES. 357 

ecution ; and upon his being convicted or found guilty, 
such tribunal shall order said baskets, vessels, and meas- 
ures to be destroj^ed. 1 

65. Surveyors of lumber in cities and towns, when re- 
quested so to do by either the purchaser or seller, shall 
survey oak and other hard wood commonly used in ship- 
building, mahogany, ash, and other ornamental wood, and 
all other lumber brought for sale into, or manufactured in, 
this state. But no surveyor shall survey lumber in which 
he has a pecuniary interest. 

66. Of pine boards and planks, except southern pine, 
there shall be six sorts. The first sort shall be denomi- 
nated number one, and include boards not less than one 
inch thick, square edged, free from rot, shakes, and nearly 
free from knots and sap, except such boards and planks as 
are not less than fifteen inches wide and not more than one- 
eighth waste, w T hich shall be received as number one. The 
second sort shall be denominated number two, and include 
boards not less than one inch thick, and of which not less 
than seven-eighths is suitable for planing and first-class 
finish : provided, that such boards as are clear but deficient 
in thickness as aforesaid shall be received as number two. 
The third sort shall be denominated number three, and in- 
clude boards not less than seven-eighths of an inch thick, 
and of which not less than three-fourths is suitable for 
planing and second-class finish. The fourth sort shall be 
denominated number four, and include boards not less than 
seven-eighths of an inch thick, nearly free from rot and 
nearly square edged, free from loose and large branch 
knots, and suitable for covering buildings ; all Norway 
pine boards and planks shall be included in the fourth, 
fifth, and sixth sorts. The fifth sort shall be denominated 
number five, and include all boards and planks of every 
description not being within the other four denomina- 
tions, except when one-third is worthless, which boards 
and planks shall be denominated refuse. 

67. Of pine joists and dimension timber there shall be 

i Gen. Stats, ch. 49, §§ 191-194. 



358 TOWN AND PARISH OFFICER. 

three sorts. The first sort shall be denominated number 
one, and include all joists and dimension timber that are 
sound and nearly square edged. The second sort shall be 
denominated number two, and include all other descrip- 
tions, except when one-third is worthless, which joists and 
dimension timber shall be denominated refuse. 

68. Of spruce, hemlock, juniper, and southern pine 
boards, planks, sawed timber, and joists, there shall be 
three sorts. The first sort shall be denominated number 
one, and include all boards, planks, sawed timber, and 
joists, that are sound and nearly square edged. The 
second sort shall be denominated number two, and in- 
clude all other descriptions, except when one-third is 
worthless, which boards, planks, sawed timber, and joists 
shall be denominated refuse. 

69. Of ash, maple, and other hard wood and ornamental 
boards, planks, and joists, there shall be three sorts. The 
first sort shall be denominated number one, and include all 
boards, planks, and joists that are free from rot, shakes, 
and bad knots. The second sort shall be denominated 
number two, and include all other descriptions, except 
when one-third is worthless, which boards, planks, and 
joists shall be denominated refuse. 

70. Of hewn timber, except mahogany and cedar, there 
shall be three sorts. The first sort shall be denominated 
number one, and include all timber that is sound and 
nearly square edged. The second sort shall be denomi- 
nated number two, and include timber of all other de- 
scriptions, except [when] one-third is worthless, which 
timber shall be denominated refuse. 

71. Of oak, juniper, and spruce knees, there shall be 
two sorts. The first sort shall be denominated number 
one, and include all sound knees of the following dimen- 
sions : arm or root one foot six inches long, body of knee 
three feet long, working thickness four inches ; arm or 
root two feet and six inches long, body of knee three feet 
long, working thickness five inches ; arm or root two feet 
and nine inches long, body of knee three feet and six 



INSPECTION AND SALE OF ARTICLES. 359 

inches long, working thickness six inches ; arm or root 
three feet and three inches long, body of knee four feet 
and six inches long, working thickness seven inches ; arm 
or root three feet and six indies long, body of knee four 
feet and three inches long, working thickness eight inches ; 
arm or root three feet and nine inches long, bod} r of knee 
four feet and six inches long, working thickness nine 
inches ; arm or root four feet long, body of knee five feet 
long, working thickness ten inches and upwards. The 
second sort shall be denominated refuse, and shall in- 
clude all other descriptions of less dimensions than those 
specified in the first denomination ; all knees shall have 
the working thickness marked thereon, and on the first 
sort, the number "one" shall be marked. 

72. Of mahogany and cedar there shall be but one sort, 
and it shall be the duty of the surveyors who are especially 
appointed to survey mahogany and cedar, to number all 
the mahogany and cedar logs or sticks contained in each 
lot or cargo in regular numerical order, and to mark the 
number of each log or stick upon the same in legible char- 
acters. And the said surveyor shall, to the best of his 
ability, ascertain the whole number of feet, board measure, 
in each and every log or stick, and what quantity thereof 
is merchantable, and what is refuse. And said surveyor 
shall thereupon issue a certificate or survey bill of said 
survey, in which shall be stated the number of each log or 
stick, and the whole number of feet contained in the same, 
and specifying the number of feet which is merchantable 
and refuse, respectively. 

73. Hewn timber, and round timber, used for masts and 
ship-building, shall be surveyed and sold as ton timber, at 
the rate of forty cubic feet to the ton ; oak and other tim- 
ber and planks commonly used in ship-building shall have 
the true contents marked thereon in cubic feet or board 
measure, and in the first and second sorts, the numbers 
"one" and "two" shall be marked thereon respectively. 
In the survey of white and Norway pine boards, planks, 
joists, sawed timber, and dimensions, the contents of the 



360 TOWN AND PARISH OFFICER. 

same shall be truly marked thereon in legible numbers, 
and on the first, second, third, fourth, and fifth sort of 
white and Norway pine boards, planks, and dimensions, 
the numbers shall be marked respectively. All boards, 
planks, joists, sawed timber, and dimension lumber shall 
be received and sold according to the contents thereof, as 
fixed and marked under the aforesaid regulations. In the 
admeasurement of round timber, one-fourth of the girth 
shall be taken for the side of the square. 

74. The fees for surve} T ing and marking shall be paid 
by the purchaser, as follows : for white, southern, and 
Norway pine, spruce, hemlock, juniper, and white wood 
boards, planks, joists, sawed timber, and dimension, 
(thirty) 1 cents for every thousand feet board measure ; for 
southern pine flooring-boards, thills-four cents for every 
thousand feet board measure ; for all kinds of pine, spruce, 
hemlock, and juniper timber, twelve cents for every ton ; 
for oak and other hard wood, twenty- four cents for every 
ton ; for knees commonly used in ship-building, three 
cents for each knee ; for ash, maple, and other hard wood 
and ornamental boards, planks, and joists, forty cents for 
every thousand feet board measure ; for Cuba, Saint Do- 
mingo, and other branch or hard mahogany, one dollar for 
every thousand feet board measure ; and for mahogany 
from the bay of Honduras, and for cedar, seventy-five 
cents for every thousand feet board measure. 

75. If a surve}-or is guilty of or connives at any fraud 
or deceit in the surveying, numbering, or marking the 
contents of any kind of wood or lumber required by this 
chapter to be surveyed ; or if a surveyor, when requested 
by the pwner of lumber to survey the same, refuses, with- 
out good reason, to perform the duty, he shall forfeit for 
each offence a sum not less than ten nor more than fifty 
dollars. 

76. Whoever sells or purchases any lumber or wood 
herein named, brought into this state for sale, which has 
not been surveyed, numbered, and marked according to 

1 Stats. 1865, ch. 115, § 1. 



INSPECTION AND SALE OF ARTICLES. 361 

the provisions hereof, shall forfeit a sum equal to double 
the amount of fees for surveying the same. 

This does not apply to a sale made out of the state, though the 
lumber is in the state. 1 

77. Whoever presumes to perform any of the duties of 
surveyor of lumber, without authority, shall forfeit not 
less than fifty nor more than two hundred dollars. 2 

78. The mayor and aldermen of cities and the select- 
men of towns may annually appoint one or more persons 
to be inspectors of provisions and animals intended for 
slaughter, who shall be sworn to faithfully discharge the 
duties of their office, and who shall receive such compen- 
sation as the city council of cities or the selectmen of 
towns shall determine. 

79. Said inspectors shall have power to inspect all ani- 
mals intended for slaughter, and all meats, fish, vegeta- 
bles, produce, fruits, and provisions of all kinds found in 
said cities or towns, or exposed for sale or kept with in- 
tent to sell therein ; and may for this purpose enter 
into all buildings or enclosures where said animals, 
meats, fish, vegetables, produce, fruits, or provisions are 
kept, stored, or exposed for slaughter or sale. When such 
animals, meat, fish, vegetables, produce, fruit, or pro- 
visions are found on such inspection to be tainted, dis- 
eased, corrupted, decayed, or unwholesome from any 
cause, said inspectors shall seize the same, and cause them 
or it to destroyed or disposed of otherwise than for food : 
provided, however, that if the owner of the property seized 
shall, at the time of the seizure, notify said inspector in 
writing of his desire to appeal to the board of health, said 
inspector shall cause said animals, meat, fish, vegetables, 
produce, fruit, or provisions to be inspected by said board 
of health, or by a committee thereof consisting of not less 
than two members, and if said board or committee shall 
find the same to be tainted, diseased, corrupted, or un- 
wholesome, they shall order the same to be destined or 
disposed of otherwise than for food; if said board or 

i Hardy v. Potter, 10 Gray, 89. 2 Gen. Stats, ch. 49, §§ 132-U4. 



362 TOWN AND PARISH OFFICER. 

committee shall not so find, they shall order said animals, 
meat, fish, vegetables, produce, fruit, or provisions to be 
forthwith returned to the owner thereof. All moneys re- 
ceived by said inspector or board of health, for property 
disposed of as aforesaid, shall, after deducting all expenses 
incurred by reason of such seizure, be paid to the owner 
thereof. 

80. Said inspectors shall have the power to inspect all 
veal found in said cities or towns, or offered or exposed 
for sale or kept with intent to sell therein, and if said 
veal is, in the judgment of the inspector, that of a calf 
killed under four weeks old, he shall seize the same and 
cause it to be destroyed or disposed of as provided in the 
preceding section, subject, however, to the same proviso 
ions concerning appeal and the disposal of moneys that 
are therein contained. 

81. When complaint is made on oath to any police, mu- 
nicipal, or district court or magistrate authorized to issue 
warrants in criminal cases, that the complainant believes 
that any diseased animals, or any tainted, diseased, cor- 
rupted, decayed, or unwholesome meat, fish, vegetables, 
produce, fruit, or provisions of any kind, or veal of any 
calf killed under four weeks old, is kept or concealed in 
any particular house or place with the intent to kill, sell, 
or offer the same for sale for food, the court or magistrate, 
if satisfied there is reasonable cause for such belief, shall 
issue a warrant to search for such animals or articles, and 
all such warrants shall be directed and executed as pro- 
vided in the third section of chapter one hundred and sev- 
enty of the General Statutes. If, upon hearing, said 
court or magistrate shall determine that said animals or 
articles, or any of them, were kept or concealed for the 
purposes aforesaid, the same shall be destroyed or dis- 
posed of by the inspector, or by any officer designated hy 
the court or magistrate, according to the provisions of the 
second section of this act (section seventy-nine) ; if the 
court or magistrate shall not so determine, said animals or 
articles shall be returned to the owner. 



INSPECTION AND SALE OF ARTICLES. 363 

82. Whoever knowingly sells, or offers or exposes for 
sale, or has in his possession with intent to sell for food 
any diseased animal, or any tainted, diseased, corrupted, 
decayed, or unwholesome meat, fish, vegetables, produce, 
fruit, or provisions of any kind whatever, shall be punished 
by imprisonment in jail not exceeding sixty days, or by 
fine not exceeding one hundred dollars. 

83. The place where property condemned under this act 
(sections seventy-eight to eighty-four inclusive) shall be 
found, and the name of every person in whose possession 
it may be found and condemned, or who shall be convicted 
of an offence under section five (eighty-two) of this act, 
shall be published in two newspapers published in the 
county. 

84. The foregoing sections of this act (sections seventy- 
eight to eighty-three inclusive) shall not be in force in any 
city or town unless this act shall be adopted by the city 
council of such city or by the inhabitants of such town. 1 

1 Stats. 1876, ch. 180. 



364 TOWN AND PARISH OFFICER. 



CHAPTER XLIL 

CERTAIN LICENSES GRANTED BY SELECTMEN. 

1. Licenses to innholders and victuallers in towns are granted by 
the county commissioners. 

The clerk of the county commissioners shall seasonably, 
before the time for granting licenses in each year, transmit 
to the selectmen of every town within the jurisdiction of 
such commissioners, a list of the persons in such town who 
were licensed as innholders or victuallers the preceding 
year. 

2. No such license shall be granted or renewed to any 
person by the county commissioners unless he produces a 
certificate from the selectmen of the town for which he 
applies to be licensed, in substance as follows, to wit : — 

We, the subscribers, a majority of the selectmen of the town of 
, do hereby certify that has applied to us to be recom- 

mended as (here expressing the employment and a particular descrip- 
tion of the place for which the license is applied for) in said town, 
and that, after mature consideration had thereon at a meeting held 
for that purpose, at which we were each of us present, we are of 
opinion that the public good requires that the petition of said 
be granted, he being to the best of our knowledge and belief a per- 
son of good moral character. 

3. Whoever produces such certificate shall be heard, and 
his application decided upon, either on a motion made 
orally by himself, or his counsel, or upon a petition in writ- 
ing, as he elects. 

4. If the selectmen of any town unreasonably neglect 
or refuse to make and deliver such a certificate, either for 
the original granting or the renewal of a license, the per- 
^on aggrieved thereby may apply for a license to the com- 
missioners, first giving twenty- four hours' notice to a 
majority of said selectmen of his intended application, so 
that if they see fit they may appear and object thereto ; 



CERTAIN LICENSES GRANTED BY SELECTMEN. 365 

and if on such application it appears that the selectmen 
did unreasonably neglect or refuse to give such certificate, 
and that the public good requires that the license be 
granted, the commissioners may grant the same. 1 

5. No innholder, tavern-keeper, retailer, confectioner, 
or keeper of any shop or house for the sale of drink or 
food, or any livery- stable keeper for horse or carriage 
hire, shall give credit to any student in an incorporated 
academy or other educational institution within this state ^ 

6. No person shall be approved or licensed for either 
of the employments aforesaid, if it appears that he has 
given credit contrary to the provisions of the preceding 
section. 2 

7. Every innholder shall at all times be furnished with 
suitable provisions for the supply of food for strangers 
and travellers, and shall also have upon his premises suit- 
able rooms, with beds and bedding, for lodging strangers 
and travellers. He shall also be furnished with stable- 
room, hay, and provender for the horses and cattle of his 
guests, whenever the authorities issuing the license shall 
so require. 

8. Ever}^ common victualler shall be at all times fur- 
nished with suitable provisions for the supply of food for 
strangers and travellers. 

9. No innholder' s license shall be granted or issued to 
any person unless at the time of making application for 
the same he shall have upon his premises the necessary 
implements and facilities for cooking, preparing, and serv- 
ing food for the purposes specified in section one (seven) of 
this act, and with the rooms, beds, and bedding specified in 
said section ; nor unless he shall have the stable-room and 
provender for horses and cattle required by said section. 

10. No common victualler's license shall be granted or 
issued to any person, unless, at the time of making applica- 
tion for the same, he shall have upon his premises the ne- 
cessary implements and facilities for cooking, preparing, 
and serving food for strangers and travellers. 

i Gen. Stats, ch. 88, §§ 4-7. 2 Gen. Stats, ch. 88, §§ 18, 19. 



366 TOWN AND PARISH OFFICER. 

11. If an innholder, when requested, refuses to receive 
and make suitable provisions for a stranger or traveller, 
and also for his horses and cattle, when he may under 
the provisions of this act be legally required so to do, he 
shall upon conviction be punished by a fine not exceeding 
fifty dollars ; and any person so convicted shall, in addi- 
tion to said penalty, forfeit his license. * 

12. If a common victualler, when requested, upon any 
other than the Lord's day, refuses to supply food to a 
stranger or traveller, he shall upon conviction be pun- 
ished by a fine not exceeding fifty dollars ; and any person 
so convicted shall, in addition to said penalty, forfeit his 
license. 

13. Whenever in the opinion of the mayor and alder- 
men of any city or the selectmen of any town, any person 
holding a license as an innholder or a common victualler 
ceases to be engaged in the business he is licensed to pur- 
sue, or fails to maintain upon his premises the implements 
and facilities required by this act, they shall immediately 
revoke the same. 

14. No innholder' s or victualler's license shall be issued 
until it has been signed by the mayor and a majority of 
the aldermen of the city, or by a majority of the selectmen 
of the town, in which it is granted. Any mayor, alder- 
man, or selectman may refuse to sign any license granted 
to a person who in his opinion has /lot complied with the 
provisions of this act, and any such officer who shall sign 
any license granted contrary to the provisions of this act 
shall upon conviction be punished with a fine not exceed- 
ing fifty dollars. 

15. All licenses issued under the provisions of this act 
(eight preceding sections) shall expire on the first day of 
April of each year. Licenses may be granted during the 
preceding month of March, to take effect upon said first 
day of April, and after that day may be granted at any 
time for the remainder of the year, when the officers au- 
thorized to issue the same deem it expedient. 1 

i Stats. 1878, chl 241, §§ 1-9. 



CERTAIN LICENSES GRANTED BY SELECTMEN. 367 

16. Whoever, without a license therefor, establishes or 
keeps an intelligence office for the purpose of obtaining or 
giving information concerning places of employment for 
domestics, servants, or other laborers, except seamen, or 
for the purpose of procuring or giving information con- 
cerning such persons for or to employers (or for the 
purpose of procuring or giving information concerning 
employment in business) ,* shall pay a fine of ten dollars 
for each day such office is so kept. 

17. The mayor and aldermen or selectmen of any city or 
town ma}', for the purposes mentioned in the preceding 
section, grant licenses to suitable persons for the term of 
one year, and may revoke the same at pleasure. They 
shall receive one dollar for each license so granted. 2 

18. The mayor and aldermen or selectmen of any city 
or town which has adopted b}-laws therefor, may license 
suitable persons to be dealers in and keepers of shops for 
the purchase, sale, or barter of junk, old metals, or second- 
hand articles, within their respective cities and towns. 

19. The license shall designate the place where the busi- 
ness is to be carried on, and contain such conditions and 
restrictions as may be prescribed by such by-laws, and 
shall continue in force for one year unless sooner revoked. 

20. Whoever not so licensed keeps a shop or is a 
dealer in such city or town, or being licensed keeps such 
shop, or is such dealer, in any other place or manner than 
that designated in his license, or after notice to him that 
his license has been revoked, shall pay a fine of twenty 
dollars for each offence. 3 

21. Every city and town may provide, by ordinance or 
b} T -law, that every keeper of a shop for the purchase, sale, 
or barter of junk, old metals, or second-hand articles, within 
their respective limits, shall keep a book, in which shall 
be written, at the time of every purchase of any such arti- 
cle, a description of the article or articles purchased, the 
name, age, and residence of the person from whom, and 

i Stats. 1872, ch. 237. 3 Gen. Stats, ch. 88, §§ 25-27. 

2 Gen. Stats, ch. 88, §§ 23, 24. 



368 TOWN AND PARISH OFFICER. 

the day and hour when, such purchase was made ; that 
such book shall at all times be open to the inspection of 
the mayor and aldermen of the city or the selectmen of 
the town in which such shop is located, and to any person 
by them respectively authorized to make such inspection ; 
that every keeper of such shop shall put in some suitable 
and conspicuous place on his shop, a sign, having his name 
and occupation legibly inscribed thereon in large letters ; 
that such shops and all articles of merchandise therein 
may be examined by the mayor and aldermen of an} r city, 
or the selectmen of any town, or by any person by them 
respectively authorized to make such examination, at all 
times ; and that no keeper of such shop shall, directly or 
indirectly, either purchase, or receive by way of barter 
or exchange, any of the articles aforesaid, of any minor or 
apprentice, knowing or having reason to believe him to be 
such ; and that no article purchased or received shall be 
sold until a period of at least one week from the date of 
its purchase or receipt shall have elapsed. Every city and 
town may also prescribe in like manner the hours in which 
such shops shall be closed, and that no keeper thereof 
shall make purchase of any of the articles aforesaid during 
such hours. 

22. Every rule, regulation, and restriction which shall 
be made by any city or town in accordance with the pro- 
visions of this act (preceding section), in regard to the 
keeping of, and traffic in, the articles aforesaid, shall be 
incorporated in every license granted in such city or town 
for dealing in the said articles. 

23. Any person who shall violate either of the rules, 
regulations, or restrictions contained in his license, as 
aforesaid, shall forfeit a sum not exceeding twenty dollars 
for each offence. 1 

24. The mayor and aldermen or selectmen of any city 
or town, which has adopted by-laws therefor, may license 
suitable persons to carry on the business of pawnbrokers 
within their respective cities and towns. 

i Stats. 1862, ch. 205. 



CERTAIN LICENSES GRANTED BY SELECTMEN. 369 

25. The license shall designate the place where the 
business is to be carried on, contain such conditions and 
restrictions as may be prescribed by such by-laws, and 
continue in force one year unless sooner revoked. 

Licenses granted to keepers of intelligence offices, dealers in junk, 
old metals, and second-hand articles, pawnbrokers and keepers of 
billiard-saloons and bowling-alleys, under chapter eighty-eight of the 
General Statutes, shall be signed by the clerk of the city or town in 
which they are granted, and every such license shall be recorded by 
such clerk in a book kept for that purpose before being delivered to 
the licensee ; such license shall set forth the name of the person 
licensed, the nature of the business, and the building or place in such 
city or town in which it is to be carried on, and shall continue in 
force until the first day of May next ensuing, unless sooner revoked, 
as provided in said chapter. The clerk issuing any such license shall 
be entitled to receive for the use of the city or town for each license 
the sum of two dollars. 

Such licenses may be granted at any time during the month of 
April, to take effect on the first day of May then next ensuing, and 
after the first day of May they may be granted for the remainder of 
the year ending on the first day of the following May. 

No license issued as aforesaid shall be valid to protect the licensee 
in any building or place other than that designated in the license, 
unless consent to removal be granted by the mayor and aldermen or 
selectmen. 

Whenever any such license shall be revoked the clerk of such 
city or town shall note such revocation upon the face of the record 
of such license, and shall give written notice of such revocation to 
the holder of the license, said notice to be delivered to him in person 
or left at the place of business designated in the license. 

So much of chapter eighty- eight of the General Statutes as is in- 
consistent herewith is hereby repealed. 1 

26. Whoever not being licensed carries on such busi- 
ness or is concerned therein within such city or town, or 
being licensed carries on such business or is concerned 
therein in any other place or manner than that designated 
in his license, or after notice to him that his license is re- 
voked, shall pay a fine not exceeding fifty dollars for each 
offence. 2 

27. Whoever occupies or uses a building in any mari- 
time place for a livery stable, except in such part thereof 

l Stats. 1876, ch. 147. 2 Gen. Stats, ch. 88, §§ 28-30. 

24 



870 TOWN AND PARISH OFFICER. 

as the mayor and aldermen or selectmen shall direct, shall 
forfeit a sum not exceeding fifty dollars for every month 
he so occupies or uses such building, and in like propor- 
tion for a longer or shorter time. 

28. Whoever erects, occupies, or uses a building for a 
stable for more than four horses, in any city or town, ex- 
cept in such part thereof as the mayor and aldermen or 
selectmen direct, shall forfeit a sum not exceeding fifty 
dollars for every month he so occupies or uses such build- 
ing, and in like proportion for a longer or shorter time. 
And the supreme judicial court, or any one of the justices 
thereof, either in term time or vacation, may issue an in- 
junction to prevent such erection, occupancy, or use, with- 
out such direction. 1 

29. No furnace for melting iron or making glass, and 
no stationary steam-engine designed for use in any mill for 
planing or sawing boards or turning wood, or in which 
any other fuel than coal is used to create steam, shall be 
erected or put up to be used in any city or town by which 
the provisions relating thereto of chapter one hundred 
ninety-seven of the statutes of eighteen hundred and forty- 
five or chapter ninety-six of the statutes of eighteen hun- 
dred and forty-six respectively have been adopted, or by 
which this and the seven following sections shall have been 
adopted, at a legal meeting of the city council of the city 
or the inhabitants of the town called for that purpose, 
unless the mayor and aldermen or selectmen thereof have 
granted a license therefor, prescribing the place where the 
building in which such steam-engine or furnace is to be 
used shall be erected, the materials and construction 
thereof, with such regulations as to the height of flues and 
protection against fire as they deem necessary for the 
safety of the neighborhood. Such license may be granted 
on a written application, and shall be recorded in the rec- 
ords of the city or town. 

30. Upon application for such license the maj^or and 
aldermen or selectmen shall assign a time and place for the 

i Gen. Stats, ch. 88, §§ 31, 32. 



CERTAIN LICENSES GRANTED BY SELECTMEN. 371 

consideration of the same, and cause at least fourteen days' 
public notice thereof to be given, at the expense of the ap- 
plicant, in such manner as they may direct, in order that 
all persons interested may be heard thereon. 

31. In any city or town by which chapter one hundred 
and ninety-seven of the statutes of eighteen hundred and 
forty-five has been adopted, or by which sections thirty- 
three to forty inclusive shall have been adopted at a legal 
meeting of the city council of the city or inhabitants of the 
town called for that purpose, the mayor and aldermen or 
selectmen, after due notice in writing to the owner of such 
steam-engine or furnace, except for making glass, erected 
or in use therein before the time of such adoption, and a 
hearing of the matter, may adjudge the same to be dan- 
gerous or a nuisance to the neighborhood, and make and 
record an order prescribing such rules, restrictions, and 
alterations, as to the building in which the same is con- 
structed or used, the construction and height of its smoke 
flues, with such other regulations as they deem necessary 
for the safety of the neighborhood ; and the city or town 
clerk shall deliver a copy of such order to a constable, who 
shall serve on the owner an attested copy thereof and 
make return of his doings thereon to said clerk within three 
days from the delivery thereof to him. 

32. The owner of a steam-engine or furnace who is 
aggrieved by such order, may apply to the superior 
court, or a justice thereof in vacation, for a jury ; and the 
court or justice shall issue a warrant for a jury to be em- 
panelled by the sheriff in like manner as is provided in 
chapter forty-three in regard to the laying out of highways. 
Such application shall be made within three days after the 
order is served upon the owner, and the jury shall be em- 
panelled within fourteen days from the issuing of the 
warrant. 

33. The court or justice, on granting the application for 
a jury, may issue an injunction restraining the further use 
of such engine or furnace until the final determination of 
the application. 



372 TOWN AND PARISH OFFICER. 

34. The jury may find a verdict either affirming or 
annulling the order in full, or making alterations therein ; 
which verdict shall be returned by the sheriff to the next 
term of the court for acceptance as in the case of high- 
wa}^s, and when accepted shall take effect as an original 
order. 

35. If the order is affirmed, costs shall be recovered by 
the city or town against the applicant ; if it is annulled, 
damages and costs shall be recovered b} r the complainant 
against the city or town ; and if it is altered, the court 
may render such judgment as to costs, as to justice shall 
appertain. 

36. Any steam-engine or furnace erected or used con- 
trary to the provisions of the seven preceding sections shall 
be deemed a common nuisance. And the mayor and alder- 
men or selectmen shall have like authority to remove the 
same as is given to boards of health to remove nuisances 
by sections eight, nine, and ten of chapter twenty-six (of 
Gen. Stats.). 

37. The mayor and aldermen or selectmen of any city or 
town, or any person by them authorized, may, after notice 
to the parties interested, examine any steam-engine or 
steam-boiler therein ; and for that purpose may enter any 
house, shop, or building ; and if upon such examination it 
appears probable that the use of such engine or boiler is 
unsafe, they ma} T issue a temporary order to suspend such 
use, and if after giving the parties interested, so far as 
known, an opportunity to be heard, they adjudge such 
engine or boiler unsafe, or defective, or unfit to be used, 
the} r may pass a permanent order prohibiting the use 
thereof until it is rendered safe. If, after notice to the 
owner or person having charge thereof, such engine or 
boiler is used contrary to either of such orders, it shall be 
deemed a common nuisance, without any other proof thereof 
than its use. 

38. The mayor and aldermen and selectmen shall have 
the same authority to abate and remove any steam-engine 
or steam-boiler erected or used contrary to the provisions 



CERTAIN LICENSES GRANTED BY SELECTMEN. 373 

of the preceding section, as boards of health have to re- 
move nuisances, by sections eight, nine, and ten of chapter 
twenty-six (of Gen. Stats.). 

39. No person shall manufacture, set up, use, or cause 
to be used, any steam-boiler, unless it is provided with a 
fusible safety plug made of lead or some other equally 
fusible material, and of a diameter of not less than one- 
half an inch ; which plug shall be placed in the roof of the 
fire-box, when a fire-box is used, and in all cases, in a part 
of the boiler fully exposed to the action of the fire, and as 
near the top of the water line as any part of the fire-surface 
of the boiler ; and for this purpose Ashcroft's ' ; protected 
safety fusible plug " may be used. 

40. Whoever without just and proper cause removes 
from any boiler the safety plug thereof, or substitutes 
therefor any material more capable of resisting the action 
of the fire than the plug so removed, shall be punished by 
a fine not exceeding one thousand dollars. 

41. Whoever manufactures, sets up, knowingly uses, or 
causes to be used, for six consecutive days, a steam-boiler 
unprovided with a safety fusible plug as named in section 
forty-three (section thirty-nine above), shall be punished 
by fine not exceeding one thousand dollars. 1 

42. No stationary engine, propelled by steam or other 
motive-power, shall be hereafter erected or put up for use 
in an}' city or town, within five hundred feet of any dwell- 
ing-house or public building, unless a licence therefor shall 
have been first granted in the manner provided in chapter 
eighty-eight of the General Statutes (preceding sections), 
in respect to licenses of steam-engines, furnaces, and boil- 
ers ; and such license shall be applied for, granted, and 
recorded in manner as therein provided. 

43. Any stationary engine hereafter erected, without 
such license, shall be deemed a common nuisance, and the 
mayor and aldermen, or selectmen, shall have like authority 
to remove the same, as is given to them by section forty 
of said chapter (section thirty- six above) . 

1 Gen. Stats, ch 88, §§ 33-45. 



374 TOWN AND PARISH OFFICER. 

44. This act (two preceding sections) shall not be in 
force in any city or town until it has been adopted at a 
legal meeting of the city council of the city, or of the in- 
habitants of the town, called for that purpose. 1 

The assessors of each city and town shall, in each year, at the time 
of making the returns required by the first section of chapter two 
hundred and eighty-three of the acts of the year eighteen hundred and 
sixty-five, return to the tax commissioner a statement showing the 
whole number of steam-boilers located in their respective cities and 
towns on the first day of May then next preceding ; by whom and 
when built, and the aggregate estimated amount of horse-power which 
such boilers are capable of furnishing. Such return shall also state 
the number of accidents causing permanent injuries to persons which 
have arisen from the use of such boilers during the year, with the 
causes thereof, as far as may be ascertained by the assessors. 

The tax commissioner shall in due season forward to the assessors, 
blanks suitable for making the returns required by the first section, 
and shall include in his annual report to the legislature a tabular 
statement of statistics derived from such returns.' 2 

45. Whoever sells, gives away, or offers for sale, or has 
in his possession with intent to sell, any of the fireworks 
called rockets, crackers, squibs, or serpents, without 
license from the may or and aldermen or selectmen of the 
cit} T or town, shall for every such offence forfeit a sum not 
exceeding ten dollars. 

46. Whoever sets fire to, or has in his possession with 
intent to set fire to, any rocket, cracker, squib, or serpent, 
or throws any lighted rocket, cracker, squib, or serpent, 
within any city or town, without the license of the mayor 
and aldermen or selectmen, shall for every offence forfeit a 
sum not exceeding ten dollars. 

47. The city council of a city and the inhabitants of a 
town may order that no gunpowder shall be kept in any 
place within the limits thereof, unless it is well secured in 
tight casks or canisters ; that no gunpowder, above the 
quantity of fifty pounds, shall be kept or deposited in any 
shop, store, or other building, or in a ship or vessel, which 
is within the distance of twenty- five rods from any other 
building or wharf ; that no gunpowder, above the quantity 

1 Stats. 18G2 3 ch. 74. 2 stats. 1873, ch. 321. 



CERTAIN LICENSES GRANTED BY SELECTMEN. 375 

of twenty-five pounds, shall be kept or deposited in any 
shop, store, or other building, within ten rods of any other 
building ; and that no gunpowder, above tire quantity of 
one pound, shall be kept or deposited in smy shop, store, 
or other building, within ten rods of another building, 
unless it is well secured in copper, tin, or brass canisters, 
holding not exceeding five pounds each, and closely cov- 
ered with copper, brass, or tin covers. They may make a 
like order in regard to gun-cotton, or other substances 
prepared like it for explosion, and, if considered necessary 
for public safety, may restrict the quantity to be so kept to 
one-fifth of the weight of gunpowder allowed by this section. 

48. Upon complaint made to a justice of the peace or 
police court b}^ the mayor or either of the aldermen, select- 
men, or fire wards of any place, that he has probable cause 
to suspect, and does suspect, that gunpowder, gun-cotton, 
or other substance prepared like it for explosion, is depos- 
ited and kept within the limits thereof contrary to law, 
such justice or court ma} r issue a warrant, directed to either 
of the constables of such place, ordering him to enter any 
shop, store, or other building, or vessel, specified in the 
warrant, and there make diligent search for such gun- 
powder, gun-cotton, or other substance, suspected to have 
been so deposited or kept, and to make return of his doings 
to said justice or court forthwith. 

49. Whoever commits an offence against any order made 
under section forty-eight (forty-seven above), shall forfeit 
a sum not exceeding twenty dollars ; but the four preced- 
ing sections shall not extend to any manufactory of gun- 
powder, gun-cotton, or other substance aforesaid, nor in 
any case prevent the transportation thereof through any 
city or town, or from one to another part thereof. 

50. The city council of any city and the inhabitants of 
any town may adopt such rules and regulations as the}' 
deem reaspnable in relation to the storage and sale, within 
the limits thereof, of camphene or any similar explosive or 
inflammable fluid, and may affix penalties for breaches 
thereof, not exceeding twenty dollars for any one offence. 1 

i Gen. Stats, ch. 88, §§ 46-51. 



376 TOWN AND PARISH OFFICER. 

51. The mayor and aldermen or selectmen of any city or 
town may license theatrical exhibitions, public shows, pub- 
lic amusements, and exhibitions of every description to 
which admission is obtained upon payment of money or the 
delivery of any valuable thing, or by a ticket or voucher 
obtained for money or any valuable thing, upon such terms 
and conditions as they deem reasonable ; and they may re- 
voke or suspend the same at their pleasure. 1 

No license shall be granted by the selectmen of any town for any 
exhibition mentioned in this section at which children under the age 
of fifteen years are employed as acrobats, contortionists, or in any 
feats of gymnastics or equestrianism. 2 

No person shall move a building in any public street or way in 
any town without written permission from the selectmen of such 
town, to be granted upon such terms and conditions as in their opin- 
ion the public safety may require ; and these provisions may be en- 
forced by injunction, to be issued on petition by the superior court in 
term time, or by a single justice thereof in vacation. 3 

No dwelling-house, shop, warehouse, barn, stable, or any other 
structure of more than eight feet in length or breadth, and seven feet 
in height, shall be erected and set up within such limits of any town 
of this commonwealth, as said town may from time to time determine, 
but of stone, brick, or other incombustible material, and covered with 
slate, tin, tile, or other incombustible material, unless in particular 
cases where the public good permits or necessity requires, to be so 
judged and signified in writing, by license, under the hands of the 
selectmen of said town, or a major part of them : provided, this shall 
not apply to any detached house, shop, stable, barn or structure 
which is located more than a hundred feet from any other house, barn, 
shop, stable, or warehouse, nor to wooden structures erected upon 
wharves of wood. 

Any such building or structure hereafter erected without license 
duly granted by the selectmen, and recorded in the records of the 
town where the same is erected, shall be deemed and taken to be 
a common nuisance, without any other proof thereof than proof of its 
use. And the selectmen of any town shall have the same power to 
abate and remove any building or structure mentioned in this act, 
erected contrary to the provisions of this act, as boards of health 
have to remove nuisances by sections eight, nine and ten of chapter 
twenty-six of the General Statutes. 

This act shall not be in force in any town unless the inhabitants 
thereof shall adopt the same at a legal meeting of said inhabitants 
called for that purpose. 4 

i Gen. Stats, ch. 88, § 74. 3 gtats. 1870, ch. 314. 

a Stats. 1874, ch. 279. * stats. 1870, ch. 375. 



CERTAIN LICENSES GRANTED BY SELECTMEN. 377 

52. The mayor and aldermen or selectmen of any city 
or town may grant a license to any person to keep a bil- 
liard table or bowling alley for hire, gain, or reward, upon 
such terms and conditions as they deem proper, to be used 
for amusement merely, but not for the purpose of gaming 
for money or other propert}'. Such license may be revoked 
at the pleasure of the authority granting it. 1 

53. Any marshal or his deputy, sheriff or his deputy, 
constable, police officer, or watchman, may at any time 
enter into a billiard room, bowling alle}^ or other room 
connected therewith, for the purpose of enforcing any law 
of the state ; and whoever obstructs or hinders the entrance 
of such officer shall be punished by fine of not less than five 
nor more than twenty dollars. 2 

The provisions of this section are extended to all buildings or 
other places named in any license granted to common victuallers by 
the county commissioners, or by the mayor and aldermen or selectmen 
of any city or town. 3 

54. The selectmen of any town may license any person to run a 
steamboat for the conveyance of passengers on lakes, ponds, and 
waters within this commonwealth, and not within the maritime juris- 
diction of the United States. 

No person shall run a steamboat for the conveyance of passengers 
as aforesaid, without having previously obtained a license therefor 
from the selectmen of the town or towns within whose limits such 
steamboat shall land or receive passengers. 

Such licenses shall be granted for a term not exceeding one year, 
and shall be recorded by the clerk of the town by which they are 
granted, who shall receive a fee of one dollar for every such license 
and record. Every such license shall set forth the name of the ves- 
sel and of the master and owner, the number of passengers such 
vessel shall be permitted to carry at any one time, and shall be posted 
in a conspicuous place thereon, and the number of passengers specified 
in such license shall in no case be exceeded. 

Whoever violates any of the provisions of this section shall be 
punished by fine not exceeding fifty dollars for each offence. 4 

1 Gen. Stats, ch. 88, § 69. 3 Stats. 1862, ch. 222. 

2 Gen. Stats, ch. 88, § 72. 4 Stats. 1876, ch. 100. 



>78 TOWN AND PARISH OFFICER. 



CHAPTER XLIIL 

SALES BY AUCTIONEERS, HAWKERS, AND PEDLEKS. 

1. The ma} T or and aldermen and selectmen of any city 
or town, b} T writing under their hands, may license one or 
more suitable inhabitants of their respective cities and 
towns, to be auctioneers within the same for the term of 
one year, and may receive to the use of the city or town 
for each license the sum of two dollars. They shall record 
every license in a book to be kept by them for that purpose. 

2. If on application made to them in writing they un- 
reasonably refuse or neglect to license the applicant, he 
may, after giving them fourteen days' notice and bonds to 
pay all costs, apply to the county commissioners, who, 
upon hearing the parties, ma} 7 grant a license. 

3. Each auctioneer shall, if required, give bonds, in a 
reasonable penalty w T ith sufficient sureties to the treasurer 
of the city or town where he is licensed, with condition 
that he shall in all things conform to the laws relating to 
auctions. 

4. Every auctioneer shall keep a fair and particular ac- 
count of all goods and chattels sold by him, and of the 
persons from whom received, and to whom sold. 

5. An auctioneer who receives for sale by auction any 
goods from a minor, knowing him to be such, or sells by 
auction any of his own goods before sunrise or after sunset, 
shall forfeit to the use of the town a sum not exceeding 
two hundred dollars for each offence. 

6. An auctioneer may sell at public auction in any place 
within his county ; and when employed by others may sell 
real or personal estate upon the premises where the same 
is situated in any place within the state. If an auctioneer 
sells by auction in any place where he is not authorized to 
sell, he shall forfeit fifty dollars. 



SALES BY AUCTIONEERS, HAWKERS, ETC. 379 

7. If a person sells or offers for sale by auction any 
goods or chattels in any city or town except as is provided 
in this chapter, the same shall be forfeited to the use of the 
city or town, and may be seized by the mayor and alder- 
men or selectmen, and libelled according to the provisions 
of chapter one hundred and fifty- three. 

8. The tenant or occupant of any house or store, having 
the actual possession and control of the same, who know- 
ingly permits a person to sell real or personal estate by 
public auction in such house or store, or in any apartment 
or yard appurtenant to the same, contrary to the provisions 
of this chapter, shall forfeit a sum not exceeding five hun- 
dred dollars. 

9. If a person, not licensed and qualified as an auction- 
eer, sells or attempts to sell any real or personal estate by 
public auction, he shall for each offence forfeit a sum not 
exceeding five hundred dollars. 1 

" Special trust and confidence is placed in an auctioneer which 
he cannot delegate. Yet this does not require that he should make all 
the sales in person. He may employ all necessary and proper clerks 
and servants. And in the course of a protracted sale, he may, un- 
doubtedly, without a violation of law, relieve himself by employing 
others to use the hammer and make the outcry. But this should be 
done under his immediate direction and supervision. We do not 
mean, however, by this, that he must be actually present during the 
whole time of the sale. An occasional absence would not subject his 
servant or substitute to the penalties of the statute. If the auction- 
eer really conducted the auction and made the sale, he might, within 
his authority, call to his aid such assistance as might be needed to 
transact the business in a convenient and proper manner; but he 
clearly could not appoint deputies to make sales at different places 
and times in his absence. But the provisions of the section do not in 
its terms or its spirit prohibit other persons (than auctioneers) from 
appointing the time and place of a sale, advertising, giving notice to 
interested parties and making adjournments. It must be strictly con- 
strued, as it is a penal statute, and applies only to the act of sale." 2 

10. Nothing in the preceding sections shall extend to 
sales made by sheriffs, deputy-sheriffs, coroners, consta- 
bles, collectors of taxes, executors, administrators, guar- 

1 Gen. Stats, eh. 50, §§ 1-9. Pick. 482; Hosiner v. Sargent, 8 Al- 

2 Commonwealth v. Harnden, 19 len, 99. 



380 TOWN AND PARISH OFFICER. 

dians, assignees of insolvent debtors, or any other person 
required by law to sell real or personal estate. 

11. Every auctioneer or other person who is guilty of 
fraud or deceit in relation to any sale by auction, shall for 
each offence forfeit a sum not exceeding one thousand 
dollars. 

12. Licenses may be granted upon such conditions re- 
specting the places of selling goods and chattels within a 
city or town as the mayor and aldermen or selectmen may 
deem expedient ; and if an auctioneer makes a sale by 
auction at a place not authorized by his license, he shall be 
liable to like penalties as if he had sold without a license. 1 

13. Any person may go about from town to town, or 
from place to place, or from dwelling-house to dwelling- 
house in the same tow^n, exposing to sale and selling fruits 
and provisions, live animals, brooms, agricultural imple- 
ments, (and tools used in making boots and shoes, 2 ) fuel, 
newspapers, books, pamphlets, agricultural products of 
the United States, and the products of his own labor or 
the labor of his family. 3 

Nothing in the thirteenth section of the fiftieth chapter 
of the General Statutes (this section) shall be so con- 
strued as to include therein any articles of the growth or 
production of foreign countries. 4 

14. The city council of any city, and the inhabitants 
of any town, may authorize the mayor and aldermen or 
selectmen thereof to restrain the sale by minors of any 
goods, wares, or merchandise, the sale of which is per- 
mitted in the preceding section, and while' such authority 
remains in force the mayor and aldermen and selectmen 
may make rules restraining such sales by minors, or may 
grant licenses to minors to make such sales upon such 
terms and conditions as they shall prescribe ; but such 
restraints and licenses shall not remain in force bej r ond 
their term of office. Whoever is guilty of a violation 
of the rules and regulations so made, or sells airv such 

1 Gen. Stats, ch. 50, §§ 10-12. 3 Gen. Stats, ch. 50, § 13. 

2 Stats. 1878, ch. 216, § 2. * Stats. 1862, ch. 178. 



SALES BY AUCTIONEERS, HAWKERS, ETC. 381 

articles without a license when the same has been re- 
quired, shall forfeit a sum not exceeding ten dollars for 
each offence. 

15. The sale of jewelry, wines, spirituous liquors, pla}- 
ing cards, indigo, and feathers, in the manner specified in 
section thirteen, is prohibited. 1 

A hawker and pedler may sell jewelry as lawfully as any other 
person, unless he sells it in the capacity or character of hawker 
and pedler. And as this involves the question of what constitutes 
the character of a hawker or pedler, it may be of interest to consider 
it as has been construed by the supreme court. The leading primary 
idea of a hawker and pedler is that of an itinerant or travelling trad- 
er, who carries goods about in order to sell them, and who actually 
sells them to purchasers, in contradistinction to a trader who has 
goods for sale and sells them in a fixed place of business. Super- 
added to this, by a hawker is generally understood one who not 
only carries goods for sale, but seeks for purchasers either by out- 
cry, or by attracting notice and attention to them as goods for sale 
by an actual exhibition or exposure of them, by placards or labels, 
or by a conventional signal, like the sound of a horn for the sale of 
fish. 2 

16. The secretary of the commonwealth may grant a 
license to go about exposing to sale and selling any goods, 
wares, or merchandise, not prohibited in the preceding 
section, to an}' applicant who files in his office a certificate 
signed by the mayor of a city or by a majority of the se- 
lectmen of a town, stating that to the best knowledge and 
belief of such mayor or selectmen, the applicant therein 
named is a citizen of the United States, or has declared 
his intention to become a citizen of the United States, and 
of good repute for morals and integrity. The mayor or 
selectmen before granting such certificate shall require 
the applicant to make oath that he is the person named 
therein, that he is a citizen of the United States, or has 
declared his intention to become a citizen of the United 
States ; which oath shall be certified by a justice of the 
peace, and accompany the certificate. Every license so 

i Gen. Stats, ch. 50, §§ 14, 15. 14 Gray, 29 ; Commonwealth v. Ober, 

2 Commonwealth v. Bruckheimer, 12 Cush. 493. 



382 TOWN AND PARISH OFFICER. 

granted shall bear date the day it is issued, and shall con- 
tinue in force one year and no longer. 1 

17. The secretary shall cause to be inserted in every 
license the names of such cities and towns as the applicant 
selects, with the sum to be paid to the respective treasur- 
ers thereof annexed, and shall receive from the applicant 
one dollar for each city or town so inserted. Every person 
so licensed may sell as aforesaid any goods, wares, and 
merchandise, not prohibited in section fifteen, in any city 
or town mentioned in his license, upon first paying the 
sum so required to the treasurer of such city or town, who 
shall certify on the face of the license the sum so received. 

18. Every person licensed under the two preceding sec- 
tions shall pa}' to the treasurer of each city or town men- 
tioned in his license, the sums following : for eveiy town 
containing not more than one thousand inhabitants, accord- 
ing to the United States census next preceding the date 
of his license, three dollars ; for every town containing 
more than one thousand and not more than two thousand 
inhabitants, six dollars ; for every town containing more 
than two thousand and not more than three thousand inhab- 
itants, eight dollars ; for every town containing more than 
three thousand and not more than four thousand inhabi- 
tants, ten dollars ; and for every city and town containing 
more than four thousand inhabitants, ten dollars, and one 
dollar for every thousand inhabitants over four thousand 
contained therein ; but the sum so to be paid to a treasurer 
shall in no case exceed twenty-five dollars. 

19. An}' person resident, paying taxes upon his stock 
in trade, and qualified to vote, in a city or town, may there 
expose to sale and sell goods, wares, or merchandise, 
upon obtaining a license pursuant to the provisions of 
sections sixteen and seventeen, and shall not be required 
to pay to the treasurer of such city or town any sum 
therefor. 

20. The secretary, upon the conditions required in sec- 
tion sixteen, may grant special state licenses, upon pay- 

i Gen. Stats, ch. 50, § 16; Stats. 1870, ch. 331, § 1. 



SALES BY AUCTIONEERS, HAWKERS, ETC. 383 

ment, by the applicant, of (fifty dollars and no more *) 
for each license ; and the person so licensed may expose 
to sale any goods, wares, or merchandise, not prohibited, 
in any city or town. (And the secretaiy of the common- 
wealth is hereb}' authorized to grant a special license to 
any disabled soldier or sailor belonging to this common- 
wealth, according to the provisions of this section of 
the fiftieth chapter of the General Statutes, without the 
payment of any sum therefor, upon satisfactory evidence 
of the identity of such soldier or sailor, and that he is 
wholly or partially disabled by reason of wounds received 
in the service of the United States, or by sickness or dis- 
ability contracted therein, and has received an honorable 
discharge from such service. 2 ) He may also grant as 
aforesaid, upon payment by the applicant of one dollar for 
each county mentioned therein, special county licenses ; 
and the person so licensed may expose to sale, within such 
counties, any tin, britannia, glass, (earthen, iron, plated, 3 ) 
or wooden wares, of the manufactures of the United 
States, or an} T other goods, wares, or merchandise, manu- 
factured by himself or his employer, and not prohibited in 
section fifteen, upon tendering to the treasurer of each 
county mentioned in said license, respectively, the sums 
following : for Suffolk, Essex, Middlesex, and Worcester, 
each four dollars ; for Norfolk, Berkshire, Hampden, Bris- 
tol, and Plymouth, each three dollars ; for Franklin, 
Hampshire, and Barnstable, each two dollars ; for Nan- 
tucket, one dollar ; for the county of Duke's County, one 
dollar. And the county treasurers, respectively, upon the 
receipt of an}' sum, as aforesaid, shall certify the amount 
so received on the face of the license. 

21. The secretary shall keep a record of all licenses 
granted, with the number of each, the name and residence 
of the persons licensed, the counties, cities, and towns, 
mentioned therein, of all special state licenses, and of all 
transfers of licenses. The treasurers of the counties, 

i Stats. 18G4, cb. 151, § 2. 3 stats. 1870, ch. 331. 

2 Stats. 1886, ch. 197. 



384 TOWN AND PARISH OFFICER. 

cities, and towns shall severally keep records of all licenses 
upon which the sums provided in this chapter have been 
paid, with the number of each, the name and residence of 
the persons licensed, and the sums received thereon, and 
all such records shall be open for public inspection. 

22. All sums paid to the secretary under this chapter 
shall be for the use of the state ; and all sums paid to the 
treasurer of a county, city, or town, shall be for the use 
of such county, city, or town. 

23. A license granted under the provisions of section 
sixteen or nineteen may be transferred by the secretary, 
upon application therefor and upon evidence furnished by 
the applicant like that required for granting a license. 
The person to whom it is transferred shall thereafter be 
liable in all respects as if he were the person originally 
licensed. No person shall sell under such license except 
the person named therein or in such transfer. 

24. Every person licensed to peddle as herein before 
provided shall post his name, residence, and the number 
of his license, in a conspicuous manner upon his parcels or 
vehicle, and when such license is demanded of him by any 
mayor, alderman, selectman, town or city treasurer or 
clerk, constable, police officer, or justice of the peace, shall 
forthwith exhibit it, and if he neglects or refuses so to do, 
shall be subject to the same penalty as if he had no license. 
So much of this chapter as relates to hawkers and pedlers, 
or a synopsis thereof, shall be printed on every license. 

25. No license to go about offering for sale or selling as 
aforesaid shall operate to defeat or bar a prosecution 
against the person licensed, if it is proved that he exposed 
to sale any article except such as are permitted in section 
thirteen in any county, city, or town, where he was not 
licensed to sell, or in which he had not paid the sum men- 
tioned in his license ; but no person so licensed shall be 
required to make payment to the treasurer of any county, 
city, or town, before he is prepared to trade therein. The 
license of any person convicted of a violation of any pro- 
vision of this or the ten preceding sections shall be void. 



SALES BY AUCTIONEERS, HAWKERS, ETC. 385 

26. Whoever counterfeits or forges a license, or has 
a counterfeited or forged license in his possession, with in- 
tent to utter or use the same as true, knowing it to be 
false or counterfeit, or attempts to sell under a license 
which has expired, or is forfeited, or which was not granted 
or has not been transferred to him, shall forfeit a sum 
not (less than fifty dollars nor *) exceeding one thousand 
dollars. 

27. Whoever goes from town to town, or from place to 
place, or from dwelling-house to dwelling-house, carrying 
for sale or exposing to sale any goods, wares, or merchan- 
dise (named in section fifteen, or carries for sale or ex- 
poses for sale an}' other goods, wares, or merchandise *), or 
takes a residence in an} r town for that purpose for a less 
term than one 3'ear, except as herein before provided, shall 
forfeit a sum not (less than fifty dollars nor *) exceeding 
two hundred dollars for each offence. 

28. No hawker, pedler, or other itinerant trader, holding 
an auctioneer's license, shall sell or expose for sale by 
public auction any goods, wares, or merchandise, in any 
other city or town than that from whose authorities such 
license was obtained ; nor in any place in such city or 
town, except such as shall be expressly described or set 
forth in said license. 2 

29. It shall be the duty of constables and police officers, 
within their respective towns and cities, to arrest and pros- 
ecute any person whom the} T may have reason to believe 
guilty of violating the provisions of said fiftieth chapter, 
relating to hawkers and pedlers ; and one-half of any for- 
feiture which may be incurred and recovered under the 
twenty-seventh section (twenty-seven above) of said chap- 
ter shall be paid to the complainant. 3 

i Stats. 1870, eh. 331. 8 Stats. 1864, ch. 151, § a. 

2 Gen. Stats, ch. 50, §§ 17-28. 

25 



TOWN AND PARISH OFFICER. 



CHAPTER XLIV. 

MASTERS, APPRENTICES, AND SERVANTS. 

1. Children under the age of fourteen years may be 
bound as apprentices or servants until that age ; and 
minors above the age of fourteen } r ears may be bound as 
apprentices or servants, females to the age of eighteen 
years or to the time of their marriage within that age, and 
males to the age of twenty-one years. 

2. Children under the age of fourteen years may be 
bound by their father, or in case of his death or incom- 
petency, by their mother or legal guardian. If illegitimate, 
the}^ may be bound by their mother during the lifetime of 
the putative father as well as after his decease. If they 
have no parent competent to act, and no guardian, they 
may with the approbation of the selectmen of the town 
where they reside, bind themselves. The power of a 
mother to bind her children shall cease upon her subse- 
quent marriage, and shall not be exercised by herself or 
husband during the continuance of such marriage. 

3. Minors above the age of fourteen years may be bound 
in the same manner, but when bound by their parent or 
guardian, the minor's consent shall be expressed in the in- 
denture and testified by his signing the same. 

4. A minor child who is, or either of whose parents is, 
chargeable to a town as having a lawful settlement therein, 
or supported there at the expense of the state, may be 
bound as an apprentice or servant by the overseers of the 
poor. 1 

In this case the overseers are public officers and not agents of the 
town, so that their admissions or acts cannot be regarded as the acts 
of the town. 2 

1 Gen. Stats, ch. Ill, §§ 1-4. 

2 New Bedford v. Taunton, 9 Allen, 207. 



MASTERS, APPRENTICES, AND SERVANTS. 387 

5. Such children, whether under or above the age of 
fourteen years, may be so bound, females to the age of 
eighteen years or to the time of their marriage within that 
age, and males to the age of twenty-one years ; and pro- 
vision shall be made in the contract for teaching them to 
read, write, and cipher, and for such other instruction, 
benefit, and allowance, either within or at the end of the 
term, as the overseers may deem reasonable. 1 

They cannot be bound for a less time, and if the provision for teach- 
ing is omitted the contract is void. It is better to insert the provision 
literally. 2 

6. No minor shall be 1 so bound unless by an indenture 
of two parts sealed and delivered by both parties ; and 
when made with the approbation of the selectmen, they 
shall certify such approbation in writing upon each part of 
the indenture. 

7. One part of the indenture shall be kept by the parent 
or guardian executing it, for the use of the minor ; and 
when made with the approbation of the selectmen or by 
the overseers of the poor, shall be deposited with the 
town clerk, and safely kept in his office for the use of the 
minor. 3 

8. No minor shall be bound as an apprentice or servant, 
unless his parent or guardian, or some responsible person 
in his behalf, shall give a written bond in the sum of two 
hundred dollars to the master, with condition that the 
minor shall serve him for the full term of such apprentice- 
ship or service, and that the master shall be held harmless 
from any loss or damage from the breach of such condition : 
provided, that minor children who have no parents able to 
give such bond, may be so bound by giving a bond in such 
sum as may be agreed upon by and between the master 
and the parents, or guardian of such minor. And the 
master shall also give bond to the minor in a like sum, with 

i Gen. Stats, ch. Ill, § 5. 8 Gen. Stats, ch. Ill, §§ 6, 7. 

2 Reidell v. Congdon, 16 Pick. 44; 
Butler v. Hubbard, 5 Pick. 250. 



388 TOWN AND PARISH OFFICER. 

condition that he shall comply with the conditions of the 
indenture, and shall not be guilty of any misconduct to- 
wards the apprentice or servant, and shall hold the appren- 
tice or servant harmless from any loss or damage by reason 
of any failure on his part to comply with the terms of the 
indenture or contract : provided, that whenever minors are 
bound by state, town, or municipal authorities or authorized 
agents, the bond required to be given to the master may 
be waived by the parties. The bond given by the master 
shall be kept for the use of the minor, by the parent or 
guardian, and when there is no parent or guardian, it shall 
be deposited with the town clerk where the master resides, 
and safely kept in his office for the use of the minor. 1 

9. All considerations of money or other things paid or 
allowed by the master upon a contract of service or appren- 
ticeship made in pursuance of this chapter, shall be paid or 
secured to the sole use of the minor bound thereby. 

10. Parents, guardians, selectmen, and overseers, shall 
inquire into the treatment of all children bound by them 
respectively or with their approbation, and of all bound by 
or with the approbation of the predecessors in office of any 
of them, and defend them from all cruelty, neglect, and 
breach of contract, on the part of masters. 

11. Complaints by parents, guardians, selectmen, or 
overseers, for misconduct or neglect of the master, and by 
the master, for gross misbehavior, or refusal to do his duty, 
or wilful neglect thereof, on the part of the apprentice or 
servant, may be filed in the superior court in the county 
where the master resides, setting forth the facts and cir- 
cumstances of the case. The court shall order notice to 
the adverse party, and if the complaint is by the master, 
to all persons who have covenanted in behalf of the appren- 
tice or servant, and to the selectmen who approved of the 
indenture, or their successors in office, and shall hear and 
determine the case with or without a jury, as the allegations 
of the parties may require. 

12. The court may render a judgment or decree, that the 

i Stats. 1865, ch. 270. 



MASTERS, APPRENTICES, AND SERVANTS. 389 

minor be discharged from his apprenticeship or service, or 
the master from his contract, and the minor thus dis- 
charged may be bound out anew. 

13. Costs may be awarded to the prevailing party and 
execution issued therefor ; but no costs shall be awarded 
against selectmen or overseers, unless it appears that the 
complaint was made without just and reasonable cause. 
Costs in favor of the master may be recovered of the parent 
or guardian who executed the indenture, or if there is no 
parent or guardian liable therefor, such costs may be re- 
covered in an action against the minor when he arrives at 
full age. 

14. Every master shall be liable to an action on the in- 
denture for the breach of any covenant on his part therein 
contained. All damages recovered in such action, after 
deducting the necessary charges in prosecuting the same, 
shall be the property of the minor, and may be applied and 
appropriated to his use by the person who recovers the 
same, and the residue shall be paid to the minor, if a male, 
at the age of twenty-one years, and if a female, at the age 
of eighteen }^ears, or at the time of her marriage within 
that age. 

15. Such action may be brought by the parent or his 
executors or administrators, the guardian, or any one who 
succeeds him in that trust, or the overseers or their succes- 
sors in office ; or it may be brought in the name of the 
minor b} 7 his guardian or next friend, as the case requires ; 
or by himself after the expiration of the term of apprentice- 
ship or service. 

16. If the action is brought by the overseers, it shall 
not abate by the death of any of them, or by their being 
succeeded in office ; but shall proceed in the names of the 
original plaintiffs, or the survivor of them, or the executors 
or administrators of the survivor ; and the money recov- 
ered therein shall be deposited in the city or town treas- 
ury to be applied and disposed of as provided in section 
thirteen (fourteen above) . 

17. No such action shall be maintained, unless com- 



390 TOWN AND PARISH OFFICER. 

menced during the term of apprenticeship or service, or 
within two years after the expiration thereof. 

18. If judgment in such action is rendered for the plain- 
tiff, the court may, upon motion of the plaintiff, discharge 
the minor from his apprenticeship or service, if not already 
done as before provided, and the minor may be bound out 
anew. 

19. No indenture of apprenticeship or service made in 
pursuance of this chapter shall bind the minor after the 
death of his master, but the apprenticeship or service shall 
be thenceforth discharged, and the minor may be bound 
out anew. 

20. All the foregoing provisions shall apply as well to 
mistresses as to masters. 

21. Nothing contained in this chapter shall affect the 
father's right at common law to assign or contract for the 
services of his children during their minority. 1 

l Gen. Stats, ch. Ill, §§ 8-17, 21-23. 



FIRES AND FIRE DEPARTMENTS. 391 



CHAPTER XLV. 

EIRES AND FIRE DEPARTMENTS. 

1. The selectmen of any town may annually, in March 
or April, appoint such number of suitable persons to be 
firewards, as they deem necessarj' ; and each person so 
appointed shall forthwith have notice thereof, and within 
seven da}-s after such notice shall enter his acceptance or 
refusal of the office with the town clerk. Whoever, after 
such notice, neglects so to enter his acceptance or refusal 
shall, unless excused by said selectmen, forfeit ten dol- 
lars. 1 

2. When a fire occurs in any wood-lands, the firewards, 
or any two of them, of a town in which the same is burning, 
or of an}' town comprising wood-lands endangered thereby, 
being present at a place in immediate danger of being 
burned over by such fire, may direct such back-fires to be 
set and maintained, and such other precautions to be taken 
to prevent the spread of the same, as they may deem ne- 
cessary. 2 

3. When a fire breaks out in any place, the firewards 
shall immediately repair thereto, and shall carry a suitable 
staff or badge of their office. 

4. The firewards, or any three of them, present at a 
place in immediate danger from a fire, and where no fire- 
wards are appointed, the selectmen or mayor and aldermen 
present, or in their absence two or more of the civil offi- 
cers present, or in their absence two or more of the chief 
military officers of the place present, may direct any house 
or building to be pulled down or demolished when they 

i Stats. 1871, ch. 21. 2 Stats. 1874, ch. 228. 



392 TOWN AND PARISH OFFICER. 

judge the same to be necessary in order to prevent the 
spreading of the fire. 1 

By chapter two hundred and one of the statutes of eighteen 
hundred and seventy-three, the engineer of a fire department in com- 
mand at a fire shall, to the exclusion of all other persons, have the 
power conferred upon firewards by the preceding section ; but only 
in those towns in which said chapter is accepted by the legal voters. 

5. One fireward has no more authority than any other person to 
direct the destruction of a house to prevent the spreading of a con- 
flagration, although it may be impossible for the other firewards or 
the other officers named in the statute to get to the place when the 
occasion for action upon the subject arises. 2 

6. If such pulling down or demolishing of a house or 
building is the means of stopping the fire, or if the fire 
stops before it comes to the same, the owner shall be enti- 
tled to recover a reasonable compensation from the city or 
town ; but when such building is that in which the fire first 
broke out, the owner shall receive no compensation. 3 

7. In Ruggles v. Inhabitants of Nantucket, Bigelow, J. said : " The 
plain intent of the statute is, that no house or building shall be de- 
molished, unless it shall be judged necessary by three firewards, or 
by the other officers authorized to act in their absence, or where no 
firewards have been appointed. It is the united judgment of the 
officers to whom the power is given, acting upon the immediate exi- 
gency, and determining the necessity which is contemplated by the 
statute. Its language is capable of no other reasonable interpreta- 
tion. It is a joint authority expressly given to the officers designated, 
acting together, and cannot be exercised by a minority or by any one 
of them. It is not sufficient, therefore, that a general conclusion or 
judgment was arrived at by three firewards, or the other officers 
mentioned, that it was necessary to destroy some buildings in order 
to put a stop to the further extension of a fire. They must go fur- 
ther. They must determine upon the particular house or building 
which they shall adjudge necessary to be destroyed for the purpose. 
This cannot be left to the individual judgment of any of the fire- 
wards." 4 

The provision of this section does not apply to a building which 
is pulled down by such order, after it is so far burnt that it is impos- 
sible to save it from destruction by fire. 5 

i Gen. Stats, ch. 24, §§ 3, 4. 3 Gen. Stats, ch. 24, § 5. 

2 Parson v. Pettingell, 11 Allen, * 11 Cush. 433. 
507. 5 Taylor v. Plymouth, 8 Met. 462. 



FIRES AND FIRE DEPARTMENTS. 393 

8. Such fire wards or other officers may, during the con- 
tinuance of a fire, require assistance for extinguishing the 
same, and removing furniture, goods, or merchandise from 
a building on fire or in danger thereof ; and may appoint 
guards to secure the same. They may also require assist- 
ance for pulling down or demolishing any house or build- 
ing when they judge it necessary ; and may suppress all 
tumults and disorders at such fire. 

9. They may direct the stations and operations of the 
engine-men with their engines, and of all other persons 
for the purpose of extinguishing the fire ; and whoever 
refuses or neglects to obey such orders shall forfeit for each 
offence a sum not exceeding ten dollars. 

10. Whoever purloins, embezzles, conveys away, or 
conceals any furniture, goods or chattels, merchandise or 
effects, of persons whose houses or buildings are on fire 
or endangered thereby, and does not within two days re- 
store or give notice thereof to the owner if known, or if 
unknown, to one of the firewards, mayor and aldermen, or 
selectmen, of the place, shall be deemed guilty of larceny. 

11. The mayor and aldermen or selectmen of places 
provided with fire engines may appoint suitable persons for 
enginemen ; who shall continue in office during the pleas- 
ure of the authority appointing them. 

12. Such engines shall be manned as follows : each com- 
mon engine, or suction engine when used as a common 
engine only, with not exceeding thirty men ; each suction 
engine, when used as such, with not exceeding forty-five 
men ; but this provision shall not affect the present right 
of sluj place to have a greater number of enginemen ap- 
pointed than is herein prescribed. 

13. The ma}T>r and aldermen or selectmen may select 
from the enginemen any number for each engine, who 
shall, under the direction of the firewards, attend fires 
with axes, fire-hooks, fire-sails, and ladders, and do such 
further duty as the mayor and aldermen or selectmen shall 
from time to time prescribe ; and they shall be entitled to 
all exemptions and privileges of other enginemen. 



394 TOWN AND PARISH OFFICER. 

14. Each company of enginemen so appointed shall 
meet annually in May, and choose a foreman or director, 
and a clerk, and establish such rules and regulations not 
repugnant to the laws of the commonwealth, respecting 
their duty as enginemen, as shall be approved by the 
ma} T or and aldermen or selectmen ; and they shall annex 
penalties thereto, not exceeding ten dollars, which may 
be recovered by the clerk in an action of tort. 

15. Such companies shall meet together once a month, 
and oftener if necessary, for the purpose of examining the 
engine and its appendages, and seeing that they are in 
good repair and ready for use. They shall, by night and 
day, under the direction of the fire wards, use their best 
endeavors to extinguish any fire that may happen in their 
city or town or the vicinity thereof. 

16. When the proprietors of an engine apply to the 
mayor and aldermen or selectmen of a city or town in 
which the engine is owned, setting forth that they desire 
that the same should be employed for the benefit of such 
place, the mayor and aldermen or selectmen may appoint 
enginemen in the same manner, with the same privileges, 
and subject to the same regulations, as if the engine be- 
longed to the place ; and if the proprietors do not agree 
as to where the engine shall be kept, the mayor and alder- 
men or selectmen shall determine the same. 

17. If the mayor and aldermen or selectmen upon such 
application refuse or delay for the space of fourteen days 
so to appoint enginemen, the proprietors may apply there- 
for in writing to the county commissioners, giving notice 
in writing to such mayor and aldermen or selectmen seven 
days at least before the sitting of the commissioners, that 
they may appear and show cause, if* any they have, why 
such enginemen should not be appointed ; and if sufficient 
cause is not shown by them, the commissioners may ap- 
point the number of enginemen prescribed in section ten. 

18. Enginemen appointed under the two preceding sec- 
tions shall, if such can be obtained, be persons living at 
or near the place where the engine is kept, and they shall 



FIRES AND FIRE DEPARTMENTS. 395 

enjoy all the privileges and exemptions of other engine- 
men. 

19. If an engineman is negligent in his duties, the 
mayor and aldermen or selectmen shall discharge him and 
appoint another in his stead. 

20. Persons appointed enginemen or members of the 
fire department in any place, and who have done duty as 
such for one year preceding the first day of May in any 
year, shall be entitled to receive from the treasurers of 
their respective towns a sum equal to the poll tax for 
state, county, and town taxes (exclusive of highway 
taxes), paid by them, or by their parents, masters, or 
guardians, and such further compensation as the town de- 
termines. 

21. The chief engineer or the officer who holds the first 
office in any fire department, and the foreman or director 
of each company in any place where no fire department is 
established by law, shall annually on or before the first 
day of May make out and certify to the assessors of their 
respective places a list of all persons in their department 
or companies who through the year preceding have per- 
formed all the duties therein required by law. The asses- 
sors shall within ten days thereafter examine such lists 
and certify to the treasurers of their respective places the 
amount to be paid to each person named therein. Such 
treasurers shall after deducting all taxes due from the 
persons so named pay the same to them, or if minors to 
their parents, masters, or guardians ; and upon refusal of 
the treasurer to pay any sums so certified and returned, 
the persons entitled may severally recover the same from 
such places in an action of contract. 

22. If such chief engineer or other officer wilfully re- 
fuses to make such certificate, he shall forfeit for each 
person whose name ought to have been so certified, a sum 
not exceeding five dollars, to be recovered in an action of 
tort to his use, or on complaint to the use of the com- 
monwealth ; and if such engineer or other officer makes a 
false certificate in such case, he shall forfeit a sum not ex- 



396 TOWN AND PARISH OFFICER. 

ceeding fifty nor less than twenty dollars, to be recovered 
in an action of tort to the use of the city or town, or on 
complaint to the use of the commonwealth. 

23. The provisions of the three preceding sections shall 
be in force only in those cities and towns which have 
adopted or may adopt the same at the annual meeting of 
the town or by the city council of the city. When such 
adoption shall be revoked by the town at an annual meet- 
ing, or by the city council of a city, said provisions shall 
cease to be in force therein. 

24. Whoever wantonly or maliciously injures a fire en- 
gine or the apparatus belonging thereto, shall be punished 
by fine not exceeding five hundred dollars, or by impris- 
onment not exceeding two years, and be further ordered 
to recognize with sufficient surety or sureties for his good 
behavior during such term as the court shall order. 

25. The selectmen of any town may establish a fire de- 
partment therein in the manner hereinafter provided, and 
such department and every other fire department, unless 
different provisions are specially made therefor, shall be 
organized in the manner, and the members thereof may 
exercise the powers and shall be subject to the liabilities, 
hereinafter mentioned. 

26. The selectmen of such town shall annually in 
April appoint for such department as many engineers not 
exceeding twelve as they may think expedient, for the 
term of one year from the first day of May following and 
until others are appointed in their stead ; and the select- 
men shall fill all vacancies. 

27. They' shall immediately after such appointment 
issue a notice to each of said engineers to meet at a time 
and place designated in the notice ; at which meeting the 
engineers shall choose a chief engineer, a clerk, and such 
other officers as they may deem necessary for their com- 
plete organization. 

28. The engineers in relation to the extinguishment of 
fires shall exercise the powers which fire wards may by 
law have and exercise, and in relation to the nomination 



FIRES AND FIRE DEPARTMENTS. 397 

and appointment of enginemen shall exercise the powers 
and perform the duties of selectmen. They may appoint 
such number of men to the engines, hose, hook, ladder, 
and sail carriages, and to constitute fire companies for 
securing property endangered by fire, as they may think 
expedient ; but the number of men appointed shall not 
exceed to each suction fire engine, fifty ; to each common 
engine, thirty-five ; to each hose-carriage, five ; to each 
hook and ladder and sail carriage, twenty-five ; and to 
each fire company, twenty-five. 1 

29. (But) selectmen, engineers of fire departments, and 
the board of engineers of fire-districts, in towns having 
one or more steam fire engines, or in which water for ex- 
tinguishing fires is supplied from hydrants (or reservoirs 2 ) , 
may appoint such number of men to hose-carriages as they 
deem expedient, not to exceed twenty men to each hose- 
carriage. 3 

30. The engine, hose, hook and ladder, and sail carriage 
men, and fire companies, may organize themselves into 
distinct companies, elect the necessary officers, and estab- 
lish such rules, regulations, and by-laws, as may be ap- 
proved by the board of engineers ; and may annex penalties 
to the breach of the same, not exceeding ten dollars in 
any case ; and the same may be recovered by the clerk in 
an action of tort to the use of the compan}- . 

31. The engineers and all persons appointed by them 
shall be subject to the same duties and liabilities and enti- 
tled to the same privileges and exemptions as enginemen 
appointed by selectmen. 

32. The board of engineers shall have the care and 
superintendence of the public engines, hose, fire-hooks^ 
ladder-carriages, and ladders, in their respective towns, 
together with the buildings, fixtures, and appendages, 
belonging thereto, and all pumps, reservoirs for water, 
and apparatus, owned by the town and used for extin- 
guishing fires ; and shall cause the same to be kept 

i Gen. Stats, ch. 24, §§ 6-26. 3 stats. 1S69, ch. 92. 

2 Stats. 1870, ch. 28. 



398 TOWN AND PARISH OFFICER. 

in repair, and when worn out to be replaced ; and, from 
time to time, shall make such alterations therein and addi- 
tions thereto as they shall deem necessary ; but such alter- 
ations, additions, or repairs, shall not in any one year 
exceed the sum of one hundred dollars, unless the town 
has authorized a larger appropriation. 

33. They may at any meeting establish such rules and 
regulations as the}?- judge proper to prohibit or regu- 
late the carrying of fire, firebrands, lighted matches, or 
other ignited materials, openly in the streets or thorough- 
fares of such town, or such parts thereof as they may 
designate, or to prohibit owners or occupants of buildings 
within their town, or such part thereof as they may desig- 
nate, from erecting or maintaining any defective chimney, 
hearth, oven, stove, or stove-pipe, fire-frame, or other 
fixture, deposit of ashes, or any mixture or other material 
which may produce spontaneous combustion, or whatever 
else may give just cause of alarm or be the means of kin- 
dling or spreading fire. 

34. They may make and. ordain rules and regulations 
not repugnant to the constitution and laws of the state, 
for their own government and the conduct of citizens at 
fires, and annex penalties for the breach thereof not ex- 
ceeding twenty dollars for one offence ; which may be 
recovered by the chief engineer in an action of tort and 
appropriated by the engineers to the improvement of the 
fire apparatus of the town : but such rules and regulations 
shall not be binding until approved by the inhabitants of 
the town at a meeting held for the purpose, and published 
as the town shall direct. 

* 35. No act hereafter passed establishing a fire depart- 
ment in any town, shall take effect until it is accepted and 
approved by the inhabitants of such town at a meeting 
held for the purpose. , 

36. Fire departments may be established in villages 
or districts containing not less than one thousand inhabi- 
tants, the officers of which shall have charge of and be 
responsible for the engines and other apparatus for the 



FIRES AND FIRE DEPARTMENTS. 399 

extinguishment of fire therein, in the same manner as fire- 
wards and enginemen of towns. 

37. Before a district is constituted and organized, a 
petition shall be presented to the town at a legal meeting, 
stating the limits of the proposed district and requesting 
the town to raise taxes for the establishment and mainte- 
nance of a sufficient fire department for the reasonable 
protection from fire of the inhabitants and property within 
said limits. If the town refuses or neglects so to do, the 
inhabitants of the proposed district may proceed to con- 
stitute and organize the same and to establish a fire de- 
partment therein as hereinafter provided. 

38. The selectmen upon the application in writing of 
not less than seven freeholders, inhabitants of such pro- 
posed district, setting forth the limits thereof, and requiring 
them to notif} T a meeting of the inhabitants thereof duly 
qualified to vote in town affairs, for the purpose of con- 
sidering the expediency of organizing such district and 
establishing a fire department, shall forthwith give notice 
to such inhabitants, in the manner of notifying town meet- 
ings, to assemble at some suitable place within the district 
for said purpose, the substance of which shall be expressed 
in the notification. If the selectmen refuse or neglect to 
notify such meeting, any justice of the peace in the county 
may notify the same. 

39. If at any such meeting the voters present deter- 
mine to organize such district, the}^ shall choose a clerk, 
who shall be sworn to keep a true record of the proceed- 
ings of all meetings and to perform all the duties of clerk 
so long as he holds the office. He may be removed by 
the district, or may resign, and in case of a vacancy an- 
other may be chosen. 

40. The district at such meeting may vote to establish a 
fire department to consist of a chief engineer, and as 
many assistant engineers, enginemen, hosemen, and hook 
and ladder men, as they may deem necessary, not exceed- 
ing for each suction engine, seventy-five, for each common 
engine, thirty-five, for each one hundred and fifty feet of 



400 TOWN AND PARISH OFFICER. 

leading hose kept for use within the district, five and not 
exceeding twenty-five hook and ladder men ; each of said 
officers and members shall be furnished with a certificate 
under the hands of the chief engineer and clerk, declaring 
his station in the department. 

41. The chief engineer and assistant engineers shall be 
chosen (annually 2 ) by the district and shall be sworn. 

42. Meetings of the district shall be called by the clerk 
when requested in writing by the chief engineer, or two 
assistant engineers, or seven voters of the district ; and 
he shall give notice of the same by posting written notifi- 
cations in at least six public places in the district not less 
than seven da}~s prior to the meeting, or by publishing the 
same in a newspaper, if one is printed in the town where 
the district is situated, which notifications shall briefly 
state the purposes of the meeting. At each of the meet- 
ings a moderator shall be chosen, who shall have the pow- 
ers of the moderator of a town meeting. After the choice 
of a clerk, he shall preside at subsequent meetings with 
like powers until a moderator is chosen. 

43. The board of engineers may from time to time 
make and publish rules and regulations for their own gov- 
ernment, and that of other members of the department, 
and of persons present at fires, and for regulating or pro- 
hibiting the carrying of fire or ignited substances in or 
through the streets or ways of the district, and prescribe 
penalties for the violation thereof, not exceeding twenty 
dollars for each offence. The board may appoint engine- 
men, hosemen, hook and ladder men, remove them, and 
fill vacancies in the companies. 

44. Engineers shall have and exercise the same powers 
and authority relative to the extinguishment of fires, and 
the demolishing of buildings for that purpose within the 
district, as firewards of towns ; and the inhabitants of 
districts shall be liable for acts done by such engineers, or 
by their orders, in the same manner as towns are liable for 
acts done by firewards. 

1 Stats. 1871, ch. 25. 



FIRES AND FIRE DEPARTMENTS. 401 

45. Engineers and other members of the fire department 
of such district shall have the immunities and privileges 
of firewards and enginemen of towns, and shall receive 
such compensation as the district determines. 1 

46. Fire districts duly organized under the provisions 
of the twentj'-fourth chapter of the General Statutes ma} T , 
at meetings called for the purpose, raise money for the 
purchase of engines and other articles necessary for the 
extinguishment of fires, for the purchase of land and erec- 
tion and repairs of necessary buildings, and other inci- 
dental expenses of the fire department. They shall choose 
a prudential committee, which shall expend the same for 
the purposes prescribed by votes of the district. 

47. Such districts shall also choose a treasurer, who 
shall give bond in such sum as the prudential committee 
require, with sureties to their satisfaction, for the faithful 
discharge of the duties of his office. The treasurer so 
chosen and qualified shall receive and take charge of all 
sums of mone}^ belonging to the district, and pay over and 
account for the same according to the order of such dis- 
trict or the prudential committee. 

48. When the office of treasurer is vacant by reason of 
death, removal, or other cause, or when the treasurer is 
prevented from performing the duties of his office, the 
prudential committee may by writing under their hands 
appoint a treasurer pro tempore, who shall give a bond in 
like manner as provided in the (preceding) section of this 
act, and hold his office until another is chosen. 2 

49. The clerk shall certify to the assessors of the town 
all sums of money voted to be raised by the district, which 
shall be assessed and collected by the officers of the town 
in the same manner that the town taxes are assessed and 
collected, and be paid over to the treasurer, who shall 
hold the same subject to the order of the (treasurer of the 
district 2 ). The assessors, treasurer, and collector of any 
town in which such district is organized shall have the 
powers and perform the duties in reference to the assess- 

i Gen. Stats, ch. 24, §§ 27-42. 2 stats. 1874, ch. 151. See ch. 15, § 97. 
26 



402 TOWN AND PARISH OFFICER. 

ment and collection of the money voted by the fire district, 
as they have and exercise in reference to the assessment, 
collection, and abatement of town taxes, (and 1 ) the sums 
so voted shall be assessed upon the (polls and 1 ) property, 
real and personal, within the district. 

50. No by-law, rule, or regulation, adopted by the dis- 
trict, and having a penalty attached to it, shall be in force 
until it is approved by the superior court for the county in 
which such fire district is. 

51. Penalties under the provisions of the twelve pre- 
ceding sections may be recovered by action of tort in the 
name of the chief engineer, and appropriated to pay the 
expenses of the fire department of the district, or on com- 
plaint or indictment to the use of the commonwealth. If 
the chief engineer shall die, resign, or remove, during the 
pendency of such suit, it shall not abate, but his successor 
shall be admitted to prosecute it. No inhabitant of the 
district shall be disqualified to act as judge, magistrate, 
juror, or officer, in a suit brought for such penalties. 

52. Such district, at a meeting called for that purpose, 
may alter the limits thereof so as to include any adjacent 
territory and its inhabitants, if (a majority of 2 ) the voters 
of said territory have petitioned therefor, setting forth the 
limits of the territory to be annexed ; or exclude any per- 
son, or the estate of any person, who has thus petitioned, 
if the town within which the district is situated has assented 
thereto. 

53. Fire districts heretofore legally organized shall con- 
tinue and be subject to the provisions of this chapter in 
relation to fire districts. 3 

54. (And) fire districts duly organized under the pro- 
visions of the twenty-fourth chapter of the General Stat- 
utes, may, at meetings legally called for that purpose in 
the manner provided in the thirty-ninth section of said 
chapter, raise money for the erection and maintenance of 
street lamps within their respective limits. 4 

1 Stats. 1876, ch. 114. 8 Gen. Stats, ch. 24, §§ 44-48. 

a Stats. 1875, ch. 122. 4 Stats. 1864, ch. 159. 



FIRES AND FIRE DEPARTMENTS. 403 

55. No association, society, or club, organized as fire- 
men, shall be allowed in any city or town, except by 
the written permission of the mayor and aldermen or 
selectmen. 

56. Whoever joins, belongs to, or assembles with, such 
association, society, or club, existing without such permis- 
sion, shall be punished by fine not less than five nor more 
than one hundred dollars, or by imprisonment in the house 
of correction for a term not exceeding three months. 

57. The provisions of the two preceding sections shall 
be in force in those cities and towns only which have 
adopted or may adopt the same. 1 

58. The selectmen of towns, containing fire districts, 
shall at least ten da}~s before the annual fire district elec- 
tion, make correct alphabetical lists of all the persons 
qualified to vote in such election, for the several officers to 
be elected, shall cause such lists to be posted up in two or 
more public places in said district, and shall perform the 
same duties in reference to the correction of said lists as 
they are now required by law to perform in reference to 
the correction of check lists for town elections. 

59. In fire districts composed of portions of two or more 
towns, the duties which the preceding section requires the 
selectmen to perform, shall be performed by the prudential 
committee of said district. 

60. The provisions of sections nine, twelve, and thirteen 
of chapter seven of the General Statutes shall be so con- 
strued as to apply to fire districts. 

61. The polls at fire district elections shall be kept open 
not less than two hours and not more than six hours. 2 

62. Any city or town which has established, or may 
hereafter establish, a fire department under the provisions 
of chapter twenty-four of the General Statutes, or acts in 
addition thereto or amendment thereof, may by vote of the 
city council in such city, or of the inhabitants of such 
town, at a meeting called for the purpose, appoint the 
term of office for the engineers, enginemen, and other mem- 

1 Gen. Stats, ch. 24, §§ 49-51. 2 stats. 1871, ch. 124. 



404 TOWN AND PARISH OFFICER. 

bers of the fire department, to begin at any future day, 
and to end in one year from the day so appointed, and so 
on from year to year. 

63. Whenever a year is thus appointed other than the 
year beginning on the first day of May, which is prescribed 
in said chapter twenty-four, all dates or other provisions 
of said chapter that have reference to the month of May, 
shall be so far altered as to have like reference to the first 
month of the year thus appointed. 

64. For the purpose of changing, in accordance with a 
vote passed as provided in section one (sixtj^-one above) , 
the s3 T stem existing at any time, any city or town may, 
by another vote which ma}- be passed at the same time, 
abridge or protract the current term of office of the 
engineers, enginemen, and other members of the fire de- 
partment : provided, that no term shall be made shorter 
than six months nor longer than eighteen months ; and 
provided, further, that the incumbents of such offices shall 
in all cases hold office until others are appointed in their 
stead. 1 

65. Cities and towns may, by ordinances and b} r -laws 
not repugnant to the laws of the commonwealth, prescribe 
rules and regulations for the inspection, materials, con- 
struction, alteration, and safe use of buildings and struc- 
tures within their respective limits not owned or occupied 
by the United States or the commonwealth, and excepting 
bridges, quays, and wharves, for the purpose of securing 
the prevention of fire and the preservation of life ; and 
may prescribe penalties, not exceeding one hundred dollars 
for each and every violation of any provision of such 
ordinances or by-laws. 

QQ, Such ordinances and by-laws may be made operative 
upon and within the whole territory of any city or town, or 
upon and within any prescribed and defined district or dis- 
tricts of such territory. 

67. The supreme judicial court, or any justice thereof, in 
term time or vacation, may, by injunction or other suitable 

i Stats. 1877, ch. 38. 



FIRES AND FIRE DEPARTMENTS. 405 

process in equity, restrain any person or corporation from 
constructing, altering, maintaining, or using any building 
or structure contrary to or in violation of any lawful ordi- 
nance or by-law made under or by virtue of this act, and 
ma}' order and enforce the removal, or abatement as a nui- 
sance, of any building or structure constructed, altered, 
maintained, or used in violation of such ordinance or by- 
law. 

68. This act (this and three preceding sections) shall 
not be in force in any city or town unless the city council 
or the inhabitants of the town shall, by legal vote, decide 
to adopt the same ; and it shall not apply to the city of 
Boston. 1 

69. The mayor and aldermen of each city, and the select- 
men of each town in this commonwealth, shall annually in 
the month of January return to the insurance commissioner 
a statement showing the number of fires which have oc- 
curred in their respective cities and towns during the pre- 
ceding year. Such return shall also state the names of the 
owners or occupants of the premises damaged or destroyed, 
the cause or origin of the fire, if known, the amount of loss 
or damage and the insurance thereon. 

70. The insurance commissioner shall in due season pre- 
pare and forward to the officials named, blanks suitable for 
making the returns required b} r the first section of this act 
(preceding section), and shall include in his annual report 
to the legislature a condensed statement of statistics de- 
rived from such returns. 2 

71. Whoever wilfully and maliciously obstructs or re- 
tards the passage of any engine or other apparatus of any 
fire department, while going to a fire through any street, 
lane, alley, or other way, shall be punished by imprison- 
ment in the house of correction not exceeding three months, 
or by fine not exceeding fifty dollars. 3 

72. The fees of the magistrate and the expenses of any 
inquisition hereafter held under the provisions of chapter 

i Stats. 1872, ch. 243. 3 stats. 1874, ch. 37. 

2 Stats. 1878, ch. 104. 



406 TOWN AND PARISH OFFICER. 

three hundred and three of the acts of the year eighteen 
hundred and sixty-seven, shall be returned to the mayor 
and aldermen or selectmen of the city or town where the 
property was destroyed, and being audited and certified by 
them shall be paid by such city or town, (and shall be the 
same as are provided by statute for similar services and 
expenses at coroners' inquests *) . 

73. Section one of chapter three hundred and three 
of the acts of eighteen hundred and sixty-seven, as 
amended ' by chapter two hundred and eighty-three of the 
acts of eighteen hundred and seventy-three, is further 
amended by striking therefrom the limitation of time within 
which complaints may be subscribed and sworn to. 2 

74. When the selectmen of any town consider it neces- 
sary, for the protection of persons and property in such 
town, against fire, to take water from any or all the pipes 
or conductors of any aqueduct company running through 
such town, said selectmen may order the engineers of the 
fire department in said town to request said aqueduct 
company to put conductors into such pipes or conductors 
of said company, for the purpose of attaching hydrants or 
conducting water into reservoirs, and in such places as 
said engineers shall think necessary to secure the safety of 
such persons and property against fire. 

This section is in addition to the provision of the General Statutes, 
which seems to be still in force; as follows : — 

A city or town in which such aqueduct is situated may put con- 
ductors into the pipes for the purpose of drawing therefrom, free 
of expense, as much water as is necessary when a building is on fire 
therein: provided, that the conductors are so secured that water 
shall not be drawn therefrom unless for the purpose of extinguishing 
fires. 

75. If said aqueduct company shall refuse or neglect to 
make such connections for two weeks from the time of said 
notice, then said engineers may proceed to make such con- 
nections as provided in the preceding section. 

Said engineers shall have the right to use all necessary 

i Stats. 1877, ch. 85. 2 stats. 1874, ch. 267. 



FIRES AND FJRE DEPARTMENTS. 407 

means for making such connections, and shall use reasona- 
ble care for the protection of the pipes and works of such 
aqueduct company. 

The cost of such connections, in all cases, shall be paid 
by the town whose selectmen shall make such order. 1 

1 Stats. 1867, ch. 158. 



408 TOWN AND PARISH OFFICER. 



CHAPTER XLVL 

DUTIES OF SELECTMEN AS TO OFFENCES AGAINST 
THE PUBLIC PEACE. 

1. If any persons, to the number of twelve or more, 
being armed with clubs or other dangerous weapons, or if 
any persons, to the number of thirty or more, whether 
armed or not, are unlawfully, riotously, or tumultuously 
assembled in any city or town, it shall be the duty of the 
ma} T or and of each of the aldermen of such city, and of 
each of the selectmen of such town, and of every justice 
of the peace living in any such city or town, and also of 
the sheriff of the county and his deputies, to go among the 
persons so assembled, or as near to them as may be with 
safety, and in the name of the commonwealth to command 
all the persons so assembled immediately and peaceably to 
disperse ; and if such persons do not thereupon immedi- 
ately and peaceably disperse, it shall be the duty of each 
of said magistrates and officers to command the assistance 
of all persons there present, in seizing, arresting, and se- 
curing such persons in custody, so that they may be pro- 
ceeded with for their offence, according to law. 

2. If any person present, being commanded by any of 
the magistrates or officers mentioned in the preceding sec- 
tion to aid or assist in seizing and securing such rioters or 
persons so unlawfully assembled, or in suppressing such 
riot or unlawful assembly, refuses Or neglects to obey 
such command, or, when required by such magistrate or 
officer to depart from the place, refuses or neglects so to 
do, he shall be deemed one of the rioters, or persons un- 
lawfully assembled, and may be prosecuted and punished 
accordingly. 

3. If any mayor, alderman, selectman, justice of the 



DUTIES OF SELECTMEN AS TO OFFENCES, ETC. 409 

peace, sheriff, or deputy-sheriff, having notice of any such 
riotous or tumultuous and unlawful assembly, in the city 
or town in which he lives, neglects or refuses immediately 
to proceed to the place of such assembly, or as near thereto 
as he can with safety, or omits or neglects to exercise the 
authority with which he is invested by this chapter for 
suppressing such assembly, and for arresting and securing 
the offenders, he shall be punished by fine not exceeding 
three hundred dollars. 

4. If any persons who are so riotously or unlawfully 
assembled, and who have been commanded to disperse, as 
before provided, refuse or neglect to disperse without un- 
necessary delay, any two of the magistrates or officers 
before mentioned may require the aid of a sufficient num- 
ber of persons, in arms or otherwise as may be necessary, 
and shall proceed in such manner as in their judgment is 
expedient, forthwith to disperse and suppress such assem- 
bly, and seize and secure the persons composing the same, 
so that they may be proceeded with according to law. 

5. When any armed force called out in the manner pro- 
vided by chapter thirteen, to suppress a tumult or riot, or 
to disperse any body of men acting together by force and 
with intent to commit a felon} T , or to offer violence to per- 
sons or property, or with intent by force or violence to 
resist or oppose the execution of the laws of this state, 
arrives at the place of such unlawful, riotous, or tumultu- 
ous assembly, the} T shall obey such orders for suppressing 
the riot or tumult, and for dispersing and arresting all per- 
sons who are committing any of said offences, as they have 
received from the governor, or any judge of a court of 
record, or the sheriff of the county, and also such orders as 
they there receive from any two of the magistrates or offi- 
cers before mentioned. 

6. If, by reason of the efforts made by any two or more 
of said magistrates or officers, or by their direction, to dis- 
perse such assembly, or to seize and secure the persons 
composing the same, who have refused to disperse, though 
the number remaining may be less than twelve, any such 



410 TOWN AND PARISH OFFICER. 

person, or other person then present, is killed or wounded, 
the magistrates and officers, and all persons acting by their 
order, or under their directions, and all persons acting 
under the two preceding sections, shall be held guiltless 
and fully justified in law ; and if any of said magistrates or 
officers, or any person acting under or by the direction of 
any of the officers before mentioned, is killed or wounded, 
all persons so assembled, and all other persons who, when 
commanded or required, refused to aid and assist said 
magistrates or officers, shall be held answerable therefor. 

7. If any of the persons so unlawfully assembled de- 
molishes, pulls down, or destroys, or begins to demolish, 
pull down, or destroy, any dwelling-house, or other build- 
ing, or ship or vessel, he shall be punished by imprison- 
ment in the state prison not exceeding five years, or by 
fine not exceeding one thousand dollars and imprisonment 
in the jail not exceeding two years, and shall also be an- 
swerable to any person injured, to the full amount of the 
damage, in an action of tort. 

8. When property of the value of fifty dollars or more 
is destroyed, or property is injured to that amount, by any 
persons to the number of twelve or more, riotously, rout- 
ously, or tumultuously assembled, the city or town within 
which the property was situated shall be liable to indem- 
nify the owner thereof, to the amount of three-fourths of 
the value of the property destroyed, or of the amount of 
such injury thereto, to be recovered in an action of tort : 
provided, that the owner of such property uses all reasona- 
ble diligence to prevent its destruction or injury, and to 
procure the conviction of the offenders. 

9. A city or town which pays any sum under the pro- 
visions of the preceding section may recover the same 
against any or all of the persons who destroyed or injured 
such property. 1 

1 Gen. Stats, ch. 164, §§ 1-9. 



SUPPRESSION OF COMMON NUISANCES. 411 



CHAPTER XLVIL 

DUTIES OF TOWN OFFICERS AS TO THE SUPPRESSION 
OF COMMON NUISANCES. 

1. In any city or town which has adopted chapter four 
hundred and sixty-nine of the statutes of eighteen hundred 
and fifty-five, or which shall adopt this and the four follow- 
ing sections, at a legal meeting of the city council or 
inhabitants of the town, if the mayor and aldermen or 
selectmen, after due notice in writing to the owner of any 
burnt, dilapidated, or dangerous building, and a hearing 
of the matter, adjudge the same to be a nuisance to the 
neighborhood, or dangerous, they may make and record 
an order prescribing such disposition, alteration, or regula- 
tion thereof as they deem necessary ; and thereupon the 
city or town clerk shall deliver a cop}' of the order to a 
constable, who shall forthwith serve an attested copy there- 
of upon such owner, and make return of his doings thereon 
to said clerk. 

2. Any owner aggrieved by such order may within three 
days of the service thereof upon him apply for a jury to the 
superior court, if sitting in the county, or to any justice 
thereof in vacation. The court or justice shall issue a 
warrant for a jury, to be empanelled by the sheriff within 
fourteen days from the date of the warrant in the manner 
provided in chapter forty- three relating to highways. 

3. The jury may affirm, annul, or alter such order ; 
and the sheriff shall return the verdict to the next term of 
the court for acceptance, and, being accepted, it shall take 
effect as an original order. 

4. If the order is affirmed, costs shall be taxed against 
the applicant ; if it is annulled, the applicant shall recover 



412 TOWN AND PARISH OFFICER. 

damages and costs against the city or town ; if it is altered 
in part, the court may render such judgment as to costs as 
justice shall require. 

5. The mayor and aldermen or selectmen of any city or 
town shall have the same power and authority to abate 
and remove any such nuisance, as are given to the board 
of health in sections eight, nine, and ten, of chapter 
twenty-six (of General Statutes *) . 

6. The ma3 T or and aldermen or selectmen of any place, 
upon complaint made to them under oath, that the com- 
plainant has reason to believe, and does believe, that any 
booth, shed, or other temporary erection, situated within 
one mile of any muster-field, cattle- show ground, or other 
place of public gathering, is used and occupied for the sale 
of spirituous or fermented liquors, or for the purpose of 
gaming, may, if they consider the complaint well founded, 
order the owner or occupant thereof to vacate and close 
the same forthwith. If the owner or occupant refuses or 
neglects so to do, the mayor and aldermen or selectmen 
may forthwith abate such booth, shed, or erection, as a 
nuisance, and pull down or otherwise destroy the same, in 
any manner they choose, or through the agency of any 
force, civil or military. 2 

7. Whoever in any city or town containing more than 
four thousand inhabitants erects, occupies, or uses any 
building for carrying on therein the business of slaughter- 
ing cattle, sheep, or other animals, or for melting or ren- 
dering establishments, or for other noxious or offensive 
trades and occupations, or permits or allows said trades or 
occupations to be carried on upon premises owned or oc- 
cupied by him or them, without first obtaining the written 
consent and permission of the mayor and aldermen, or se- 
lectmen of such city or town, shall forfeit a sum not 
exceeding two hundred dollars for every month he or they 
so occupy or use such building or premises, and in like 
proportion for a longer or shorter time : provided, that the 
terms of this section shall not apply to any building or 

1 See chapter on Board of Health. 2 Qen. Stats, ch. 87, §§ 1-5, 10. 



SUPPRESSION OF COMMON NUISANCES. 413 

premises now occupied or used for the trades or occupa- 
tions before described ; but no person or persons or corpo- 
ration now occupying or using any building or premises 
for the trades or occupations aforesaid, shall enlarge or 
extend the same without first obtaining the written con- 
sent and permission of the mayor and aldermen or select- 
men of the city or town in which such building or premises 
are situated in the manner provided in this section. 

8. Whenever in any city or town containing more than 
four thousand inhabitants any building or premises are 
occupied or used by any person or persons or corporation 
for carrying on the business of slaughtering cattle, sheep, or 
other animals, or for melting or rendering establishments, 
or for other noxious or offensive trades, the state board of 
health ma} T , if in their judgment the public health or the 
public comfort and convenience shall require, order any per- 
son or persons or corporation canying on said trades or 
occupations, to desist and cease from further carrying on 
said trades or occupations in such building or premises, and 
any person or persons or corporation continuing to occupy 
or use such building or premises for carrying on said trades 
or occupations after being ordered to desist and cease 
therefrom by said board, shall forfeit a sum not exceeding 
two hundred dollars for every month he or they continue 
to occup3 T and use such building or premises for carrying 
on said trades or occupations after being ordered to desist 
and cease therefrom by said board as aforesaid, and in like 
proportion for a longer or shorter time : provided, that on 
any application to said board to exercise the powers in 
this section conferred upon them, a time and place for 
hearing the parties shall be assigned by said board, and due 
notice thereof given to the party against whom the appli- 
cation is made, and the order herein before provided shall 
only be issued after such notice and hearing. 

9. The supreme judicial court, or any one of the justices 
thereof, in term time or vacation, shall have power to issue 
an injunction to prevent the erection, occupancy, use, en- 
largement, or extension of any building or premises occu- 



414 TOWN AND PARISH OFFICER. 

pied or used for the trades or occupations aforesaid, without 
the written consent and permission provided in section one 
(seven) of this act being first obtained ; and also in like 
manner to enforce the orders of the state board of health 
issued under section two (eight) of this act. 1 

i Stats. 1871, ch. 167, §§ 1-3. 



DUTIES OF SELECTMEN AS TO DISEASED CATTLE. 415 



CHAPTER XLVIII. 

DUTIES OF SELECTMEN AS TO DISEASED CATTLE. 

1. The selectmen of towns and the mayor and aldermen 
of cities, in case of the existence in this commonwealth 
of the disease called pleuro-pneuinonia, or any other con- 
tagious disease among cattle, shall cause the cattle in their 
respective towns and cities, which are infected, or which 
have been exposed to infection, to be secured or collected 
in some suitable place or places within such city or town, 
and kept isolated ; and, when taken from the possession 
of their owners, to be maintained, one-fifth of the expense 
thereof to be paid by the town or city wherein the animal 
is kept, and four-fifths at the expense of the common- 
wealth ; such isolation to continue so long as the exist- 
ence of such disease, or other circumstances, renders the 
same necessary. 

2. Said selectmen and mayor and aldermen, when any 
such animal is adjudged by a veterinary surgeon or physi- 
cian, by them selected, to be infected with pleuro-pneu- 
monia, or any other contagious disease, may, in their 
discretion, order such diseased animal to be forthwith 
killed and buried at the expense of such town or city. 

3. Said selectmen and mayor and aldermen shall cause 
all cattle which they shall so order to be killed, to be ap- 
praised by three competent and disinterested men, under 
oath, at the value thereof at the time of the appraisal, 
and the amount of the appraisal shall be paid as provided 
in the first section. 

4. Said selectmen and mayor and aldermen, within their 
respective towns and cities, are hereby authorized to pro- 
hibit the departure of cattle from any enclosure, or to 
exclude cattle therefrom. 



416 TOWN AND PARISH OFFICER. 

5. Said selectmen and ma} T or and aldermen may make 
regulations in writing to regulate or prohibit the passage 
from, to, or through their respective cities or towns, or 
from place to place within the same, of any neat cattle, 
and may arrest and detain, at the cost of the owners 
thereof, all cattle found passing in violation of such regu- 
lations, and may take all other necessaiy measures for the 
enforcement of such prohibition, and also for preventing 
the spread of any such disease among the cattle in their 
respective towns and cities, and the immediate vicinity 
thereof. 

6. The regulations made by selectmen and mayors and 
aldermen, in pursuance of the foregoing section, shall be 
recorded upon the records of their towns and cities re- 
spective^, and shall be published in such towns and cities 
in such manner as ma}' be provided in such regulations. 

7. Said selectmen and mayor and aldermen are authorized 
to cause all cattle infected with such disease, or which have 
been exposed thereto, to be forthwith branded upon the rump 
with the letter P, so as to distinguish the animal from other 
cattle ; and no animal so branded shall be sold or disposed 
of except with the knowledge and consent of such select- 
men and mayor and aldermen. Any person, without such 
knowledge and consent, selling or disposing of an animal 
so branded, or selling or disposing of an animal known to 
be affected with such disease, or known to have been ex- 
posed thereto within one year previous to such sale or 
disposal, shall be punished by a fine not exceeding five 
hundred dollars, or by imprisonment not exceeding one 
year. 

8. Any person disobeying the orders of the selectmen 
or mayor and aldermen, made in conformity with the 
fourth section, or driving or transporting any neat cattle 
contrary to the regulations made, recorded, and published 
as aforesaid, shall be punished by fine not exceeding five 
hundred dollars, or by imprisonment not exceeding one 
year. 

9. Whoever knows or has reason to suspect the exist- 



DUTIES OF SELECTMEN AS TO DISEASED CATTLE. 417 

ence of any such disease among the cattle in his possession, 
or under his care, shall forthwith give notice to the select- 
men of the town or mayor and aldermen of the city where 
such cattle may be kept, and for failure so to do shall be 
punished by fine not exceeding five hundred dollars, or by 
imprisonment not exceeding one year. 

10. An}^ town or city whose officers shall neglect or re- 
fuse to carry into effect the provisions of sections one, two, 
three, four, five, six, and seven, shall forfeit a sum not ex- 
ceeding five hundred dollars for each day's neglect. 

1 1 . All appraisals made under the provisions of this act 
shall be in writing and signed by the appraisers, and the 
same shall be certified to the governor and council and to 
the treasurer of the several cities and towns wherein the 
cattle appraised were kept by the selectmen and mayors 
and aldermen respectively. 

12. The selectmen of towns and mayor and aldermen of 
cities are hereby authorized, when in their judgment it 
shall be necessary to carry into effect the purposes of this 
act, to take and hold possession, for a term not exceeding 
one year, within their respective towns and cities, of any 
land, without buildings other than barns thereon, upon 
which it may be necessary to enclose and isolate any cattle, 
and they shall cause the damages sustained by the owner 
in consequence of such taking and holding to be appraised 
by the assessors of the town or city wherein the lands so 
taken are situated ; and they shall further cause a descrip- 
tion of such land, setting forth the boundaries thereof, and 
the area as nearly as may be estimated, together with said 
appraisal by the assessors, to be entered on the records of 
the town or city. The amount of said appraisal shall be 
paid as provided in the first section, in such sums and at 
such times as the selectmen or mayor and aldermen respect- 
ively may order. If the owner of any land so taken shall 
be dissatisfied with the appraisal of said assessors, he may 
by action of contract recover of the town or city wherein 
the lands lie a fair compensation for the damages sustained 
by him ; but no costs shall be taxed, unless the damages 

27 



418 TOWN AND PARISH OFFICER. 

recovered in such action, exclusive of interest, exceed the 
appraisal of the assessors. And the commonwealth shall 
reimburse any town or city four-fifths of any sum recovered 
of such town or cit} r in any such action. 1 

13. The selectmen of towns, the mayor and aldermen 
of cities, and the cattle commissioners of this common- 
wealth, shall have and may exercise the powers and shall 
be subject to the duties for the prevention of the diseases 
known as farcy and glanders among horses, asses, and 
mules, and for the prevention of contagious and infectious 
diseases among domestic animals, that are now conferred 
or imposed upon them by the laws relating to the preven- 
tion of contagious diseases among cattle. 

14. The penalties imposed by chapter two hundred and 
nineteen of the acts of the year one thousand eight hundred 
and sixty, entitled ' ' An Act concerning contagious diseases 
among cattle, " (this chapter,) are hereby made applicable 
to any violation of law relating to the diseases in horses, 
asses, and mules, known as farcy and glanders, or relating 
to contagious or infectious diseases in domestic animals. 2 

l Stats. 1860, ch. 219. 2 stats. 1878, ch. 24, §§ 1, 2. 



REGISTRY AND RETURNS OF BIRTHS, ETC. 419 



CHAPTER XLIX. 

REGISTRY AND RETURNS OF BIRTHS, MARRIAGES, 
AND DEATHS. 

1. The clerk of each city and town shall receive or ob- 
tain, and record and index, the following facts concerning 
the births, marriages, and deaths, therein, separately num- 
bering and recording the same in the order in which he re- 
ceives them , designating in separate columns ; 

In the record of births, the date of the birth, the place 
of birth, the name of the child, (if it have any,) the sex 
and color of the child, the names and the places of birth 
of the parents, the occupation of the father, the residence 
of the parents, and the date of the record ; 

In the record of marriages, the date of the marriage, the 
place of marriage, the name, residence, and official station 
of the person by whom married, the names and the places 
of birth of the parties, the residence of each, the age and 
color of each, the condition of each, (whether single or 
widowed,) the occupation, the names of the parents, and 
the date of the record ; 

In the record of deaths, the date of the death, the name 
of the deceased, the sex, the color, the condition, (whether 
single, widowed, or married,) the age, the residence, the 
occupation, the place of death, the place of birth, the names 
and places of birth of the parents, the disease or cause of 
death, the place of burial, and the date of the record. 

2. Parents shall give notice to the clerk of their city or 
town of the births and deaths of their children ; every 
householder shall give like notice of every birth and death 
happening in his house ; the eldest person next of kin shall 
give such notice of the death of his kindred ; the keeper of 
a workhouse, house of correction, prison, hospital, or alms- 



420 TOWN AND PARISH OFFICER. 

house, except the state almshouses at Tewksbury, Bridge- 
water, and Monson, and the master or other commanding 
officer of any ship shall give like notice of every birth and 
death happening among the persons under his charge. 
Whoever neglects to give such notice for the space of six 
months after a birth or death, shall forfeit a sum not ex- 
ceeding five dollars. 

3. An}- plrysician having attended a person during his 
last illness, shall, when requested within fifteen days after 
the decease of such person, forthwith furnish for registra- 
tion a certificate of the duration of the last sickness, the 
disease of which the person died, and the date of his de- 
cease, as nearly as he can state the same. If any physi- 
cian refuses or neglects to make such certificate, he shall 
forfeit and pa}' the sum of ten dollars to the use of the 
town in which he resides. 

4. Every sexton, undertaker, or other person having 
charge of a burial-ground, or the superintendent of burials 
having charge of the obsequies or funeral rites preliminary 
to the interment of a human body, shall forthwith obtain 
and return to the clerk of the city or town in which the 
deceased resided or the death occurred, the facts required 
by this chapter to be recorded by said officer concerning 
the deceased, and the person making such return shall re- 
ceive from his city or town the fee of (twenty-five *) cents 
therefor. 

The clerk, upon recording such facts, shall forthwith 
give to the person making such return, a certificate that 
such return has been made, which certificate such person 
shall deliver to the person having charge of the interment, 
if other than himself, before the burial when practicable, 
otherwise within seven days thereafter. When a burial 
takes place and no certificate is delivered as aforesaid, the 
sexton, undertaker, or other person having charge of the 
interment, shall forthwith give notice thereof to the clerk 
under penalty of twenty dollars. 

5. The clerk of each city and town shall annually on or 

1 Stats. 1873, ch. 202. 



REGISTRY AND RETURNS OF BIRTHS, ETC. 421 

before the first day of February, transmit to the secretary 
of the commonwealth certified copies of the records of the 
births, marriages, and deaths, which have occurred therein 
during the year ending on the last day of the preceding 
December. 

6. The record of the town clerk relative to any birth, 
marriage, or death, shall be prima facie evidence, in legal 
proceedings, of the facts recorded. The certificate signed 
by the town clerk for the time being shall be admissible as 
evidence of any such record. 

7. The clerk shall receive from his cit}- or town for ob- 
taining, recording, indexing, and returning to the secre- 
tary of the commonwealth, the facts in relation to a birth, 
twenty cents ; a marriage, ten cents ; a death, twenty cents 
for each of the first twenty entries, and ten cents for each 
subsequent entry, as the same shall be certified by the sec- 
retary of the commonwealth ; but a city or town containing 
more than ten thousand inhabitants may limit the aggre- 
gate compensation allowed to their clerk. He shall forfeit 
a sum not less than twenty nor more than one hundred 
dollars for each refusal or neglect to perform any duty re- 
quired of him by this chapter. 

See section fourteen of this chapter for fees of clerk ; and so much 
of this section as is inconsistent with section fourteen of this chapter 
is repealed. 

8. The superintendents of the state almshouses at Tewks- 
bury, Bridgewater, and Monson, shall obtain, record, and 
make return of, the facts in relation to the births and deaths 
which occur in their respective institutions, in like manner 
as is required of town clerks. The clerks of said towns 
shall, in relation to the births and deaths of persons in said 
almshouses, be exempt from the duties otherwise required 
of them by this chapter. 

9. The secretary shall at the expense of the common- 
wealth prepare and furnish to the clerks of the several 
cities and towns, and to the superintendents of the state 
almshouses, blank books of suitable quality and size to be 



422 TOWN AND PARISH OFFICER. 

used as books of record under this chapter, blank books 
for indexes thereto, and blank forms for returns, on paper 
of uniform size ; and shall accompany the same with such 
instructions and explanations as may be necessary and 
useful. City and town clerks shall make such distribution 
of blank forms of returns furnished by the secretary as he 
shall direct. 

10. The secretary shall cause the returns received by 
him for each year to be bound together in one or more 
volumes with indexes thereto. He shall prepare from the 
returns such tabular results as will render them of practi- 
cal utility, make report thereof annually to the legislature, 
and do all other acts necessary to carry into effect the pro- 
visions of this chapter. 

11. Any city or town containing more than ten thousand 
inhabitants, may choose a person other than the clerk to be 
registrar, who shall be sworn, and to whom all the pro- 
visions of this chapter concerning clerks shall apply. The 
returns and notices required to be made and given to 
clerks shall be made and given to such registrar under like 
penalties. 

As to fees of registrar, see section fourteen of this chapter. 

12. The secretary of this commonwealth shall prosecute, 
by an action of tort, in the name of the commonwealth, for 
the recovery of any penalty or forfeiture imposed by this 
[chapter] [act] . 

13. Any city or town may make rules and regulations 
to enforce the provisions of this chapter, or to secure a 
more perfect registration of births, marriages, and deaths, 
therein. 1 

14. The clerk of each city and town, except in such 
cities and towns as choose a registrar, under the eleventh 
section of the twenty- first chapter of the General Statutes, 
in which cases the provisions of this act shall apply to the 
registrar, for receiving or obtaining, recording, indexing, 
and returning the facts relating to marriages, births, and 

i Gen. Stats, ch. 21. §§ 1-13. 



REGISTRY AND RETURNS OF BIRTHS, ETC. 423 

deaths occurring therein, shall be entitled to receive there- 
from the sums following; viz., for each marriage, fifteen 
cents ; for each birth, thirty cents ; for each death returned 
to him by the persons specified in sections two, three, and 
four of chapter twenty-one of the General Statutes, twenty 
cents for each of the first twenty entries, and ten cents for 
each subsequent entry ; for each death not so returned, 
but by him obtained and recorded, thirty- five x cents. 2 

15. No human body shall be buried, or removed from 
any city or town, until a proper certificate has been given 
by the clerk or local registrar of statistics to the under- 
taker or sexton, or person performing the burial, or re- 
moving the body. This certificate shall state that the 
facts required by chapter twenty-one of the General Stat- 
utes (foregoing portion of this chapter) have been returned 
and recorded ; and no clerk or local registrar shall give 
such certificate or burial permit until the certificate of the 
cause of death has been obtained from the physician, if any, 
in attendance at the last sickness of the deceased, and 
placed in the hands of said clerk or local registrar : pro- 
vided, that in those cities and towns where local boards of 
health have been established, the certificate of the cause 
of death shall be approved by such board before a permit 
to bury is given by the registrar or clerk. Upon applica- 
tion, the chairman of the local board of health or any phy- 
sician employed by any city or town for such purpose, shall 
sign the certificate of the cause of death to the best of his 
knowledge and belief, if there has been no physician in at- 
tendance. He shall also sign such certificate, upon appli- 
cation, in case of death by dangerous contagious disease, 
or in any other event when the certificate of the attending 
physician cannot for good and sufficient reasons be early 
enough obtained. In case of death by violence, the medi- 
cal examiner attending shall furnish the requisite medical 
certificate. Any person violating the provisions of this 
section shall be punished by a fine not exceeding twenty- 
five dollars. 

i Stats. 1873, ch. 341. 2 stats. 1866, eh. 138, § 1. 



424 TOWN AND PARISH OFFICER. 

16. This act (this and the preceding section) shall take 
effect on the first day of May in the year eighteen hundred 
and seventy-eight ; and all acts and parts of acts incon- 
sistent herewith are hereby repealed. 1 

i Stats. 1878, ch. 174. 



BOARD OF HEALTH. 425 



CHAPTER L. 

BOARD OF HEALTH. 

1. A town respecting which no provision is made by 
special law for choosing a board of health, may, at its an- 
nual meeting or at a meeting legally warned for the pur- 
pose, choose a board of health, to consist of not less than 
three nor more than nine persons ; or may choose a health 
officer. If no board or officer is chosen the selectmen 
shall be the board of health. (The election shall be by 
written ballot. 1 ) 

2. Except where different provision is made by law, the 
city council of a city may appoint a board of health ; may 
constitute either branch of such council, or a joint or sepa- 
rate committee of their body, a board of health, either for 
general or special purposes, and may prescribe the manner 
in which the powers and duties of the board shall be exer- 
cised and carried into effect. In default of the appoint- 
ment of a board with full powers, the city council shall 
have the powers and perform the duties prescribed to 
boards of health in towns. 

3. Every board of health may appoint a physician to 
the board, who shall hold his office during its pleasure. 

4. The board shall establish the salary or other compen- 
sation of such physician, and shall regulate all fees and 
charges of persons employed by it in the execution of the 
health laws and of its own regulations. 2 

5. Boards of health in the several cities and towns in 
this commonwealth, may appoint an agent or agents to 
act for them, respectively, in cases of emergency, or when 
such board cannot be conveniently assembled ; and such 

1 Stats. 1878, ch. 26. 2 Gen. Stats, ch. 26, §§ 1-4. 



426 TOWN AND PARISH OFFICER. 

agent so appointed shall have and exercise all the author- 
ity which the board of health appointing him had ; but he 
shall, within two days, report his action in each case to 
the board of health for their approval, and shall be directly 
responsible to and under the control and direction of the 
board of health from which he received such appoint- 
ment. 1 

6. The board shall make such regulations as it judges 
necessary for the public health and safety, respecting 
nuisances, sources of filth, and causes of sickness, within 
its town, or on board of vessels within its harbor ; and 
respecting articles which are capable of containing or con- 
veying infection or contagion, or of creating sickness, 
brought into or conveyed from its town, or into or from 
any vessel. Whoever violates any such regulation shall 
forfeit a sum not exceeding one hundred dollars. 

7. Notice shall be given by the board of all regulations 
made by it, by publishing the same in some newspaper of 
its town, or where there is no such newspaper by posting 
them up in some public place in the town. Such notice 
shall be deemed legal notice to all persons. 

8. The board shall examine into all nuisances, sources 
of filth, and causes of sickness, within its town, or in any 
vessel within the harbor of such town, that may in its 
opinion be injurious to the health of the inhabitants, and 
the same shall destroy, remove, or prevent, as the case 
ma} 7 require. 

9. The board or the health officer shall order the owner 
or occupant at his own expense to remove any nuisance, 
source of filth, or cause of sickness, found on private prop- 
erty, within twenty-four hours or such other time as it 
deems reasonable after notice served as provided in the 
following section ; and if the owner or occupant neglects 
so to do, he shall forfeit a sum not exceeding twenty dol- 
lars for ever} 7 day during which he knowingly permits such 
nuisance or cause of sickness to remain after the time pre- 
scribed for the removal thereof. 2 

i Stats. 1866, ch. 271. 2 Gen. Stats, ch. 26, §§ 5-8. 



BOARD OF HEALTH. 427 

Such order for the removal of a nuisance is valid without pre- 
vious notice to the parties interested, and opportunity for them to 
appear and be heard. 

But it is necessary that the order should be so explicit as to suffi- 
ciently inform the party of the nature and locality of the nuisance 
to be removed. And it need not prescribe a mode for the removal, 
as the owner or occupant of the property on which the nuisance is 
found is not restricted by such prescription if made. 1 

10. Any person aggrieved by the neglect or refusal of 
any board of health in an}^ city or town to pass all proper 
orders abating a nuisance or nuisances in said city or town, 
may appeal to the board of county commissioners in the 
same county for a redress of such grievances, and the said 
commissioners shall have full power to hear and deter- 
mine the matter of such appeal, and may make such 
decree and exercise and perform all the powers in such 
case as a board of health may exercise and perform in 
a town, as specified in chapter twenty-six of the General 
Statutes. 

11. The party so appealing shall, within twenty-four 
hours after such neglect or refusal by any board of health, 
give written notice to the opposite party of his intention 
so to appeal, and within seven days after such neglect or 
refusal, shall present a petition to some member of the 
said board of commissioners, setting forth the grievances 
complained of, and the action of the board of health 
thereon, and shall thereupon enter into such recognizance 
before said board of commissioners, in such sum and with 
such suret}^ or sureties as they shall order. 

12. The said commissioners, when acting under the pro- 
visions of this act, shall tax three dollars per day for time, 
and five cents a mile for travel to and from the place of 
meeting, to be paid into the county treasury ; and such 
costs shall be in the first instance paid by the appellant, 
and said commissioners may award that such costs and 
any other costs of the proceeding shall be paid by either 
party, as in their judgment justice shall require. 

1 Salem v. Eastern R. R., 98 Mass. 431. 



428 TOWN AND PARISH OFFICER. 

13. This act shall not affect any suit or proceeding 
now pending, nor shall it affect the jurisdiction of any 
court. 1 

14. Such order shall be made in writing, and served by 
any person competent to serve a notice in a civil suit, per- 
sonally on the owner, occupant, or his authorized agent ; 
or a copy of the order may be left at the last and usual 
place of abode of the owner, occupant, or agent, if he is 
known and within the state. But if the premises are un- 
occupied and the residence of the owner or agent is 
unknown or without the state, the notice may be served 
by posting the same on the premises and advertising in 
one or more public newspapers in such manner and for 
such length of time as the board or health officer may 
direct. 

15. If the owner or occupant fails to comply with such 
order, the board may cause the nuisance, source of filth, 
or cause of sickness, to be removed, and all expenses in- 
curred thereby shall be paid by the owner, occupant, or 
other person who caused or permitted the same, if he has 
had actual notice from the board of health of the existence 
thereof. 2 

16. Upon the failure of the owner or occupant of the property on 
which the nuisance is found to remove the same, the board is not 
restricted to the mode prescribed in the order, but may adopt any 
which is suitable, even if, in so doing, it is necessary to subvert soil 
adjoining that on which the nuisance exists. 

17. And in an action by the authorities against a party alleged to 
have caused a nuisance, to recover money expended by the board of 
health for removing it, if such party had no opportunity to be heard 
before the board, none of the findings or adjudications of the board 
preliminary to the incurring of such expenses are conclusive upon 
him, and all the facts on which the recovery is sought are open to be 
controverted, and must be established by the proofs. 3 

18. The board, when satisfied upon due examination 
that any cellar, room, tenement, or building, in its town, 
occupied as a dwelling-place, has become, by reason of the 

i Stats. 1866, ch. 211, §§ 1-4. 3 Salem v. Eastern R. R., 98 Mass. 

2 Gen. Stats, ch. 26, §§ 9, 10. 431. 



BOARD OF HEALTH. 429 

number of occupants, or want of cleanliness, or other 
cause, unfit for such purpose and a cause of nuisance or 
sickness to the occupants or the public, may issue a notice 
in writing to such occupants, or any of them, requiring 
the premises to be put into a proper condition as to clean- 
liness, or if they see fit requiring the occupants to remove 
or quit the premises within such time as the board may 
deem reasonable. If the persons so notified, or any of 
them, neglect or refuse to comply with the terms of the 
notice, the board may cause the premises to be properly 
cleansed at the expense of the owners, or may remove the 
occupants forcibly and close up the premises, and the same 
shall not be again occupied as a dwelling-place without 
the consent in writing of the board. If the owner there- 
after occupies or knowingly permits the same to be occu- 
pied without such permission in writing, he shall forfeit a 
sum not less than ten nor more than fifty dollars. 

19. When a person is convicted on an indictment for a 
common nuisance injurious to the public health, the court 
in their discretion may order it to be removed or destroyed 
at the expense of the defendant, under the direction of the 
board of health ; and the form of the warrant to the 
sheriff or other officer may be varied accordingly. 

20. The superior court, or a justice thereof in term time 
or vacation, may, either before or pending a prosecution 
for a common nuisance affecting the public health, issue 
an injunction to stay or prevent the same until the matter 
shall be decided by a jury or otherwise ; ma}^ enforce such 
injunction according to the course of proceedings in chan- 
ceiy ; and may dissolve the same when the court or one 
of the justices shall think proper. 1 

21. When the board thinks it necessary for the preser- 
vation of the lives or health of the inhabitants, to enter 
any land, building, premises, or vessel, within its town, 
for the purpose of examining into and destroying, remov- 
ing, or preventing, any nuisance, source of filth, or cause 
of sickness, and said board or any agent thereof sent for 

i Gen. Stats, ch. 26, §§ 11-13. 



430 TOWN AND PARISH OFFICER. 

that purpose shall be refused such entry, any member of 
the board, or such agent, may make complaint under oath 
to any justice of any court of record, or to two justices of 
the peace of the county, stating the facts of the case so 
far as he has knowledge thereof, and said justice or justices 
may thereupon issue a warrant directed to the sheriff or 
any of his deputies, or to any constable of such town, 
commanding him to take sufficient aid, and at any reason- 
able time repair to the place where such nuisance, source 
of filth, or cause of sickness, complained of may be, and 
the same to destroy, remove, or prevent, under the direc- 
tions of said board. 1 

22. The board may grant permits for the removal of 
any nuisance, infected articles, or sick person, within the 
limits of its town, when it thinks it safe and proper so 
to do. 

23. When any person coming from abroad or residing 
in any town in this state is infected, or lately has been in- 
fected, with the plague or other sickness dangerous to the 
public health, except as is otherwise provided in this chap- 
ter, the board shall make effectual provision in the manner 
which it judges best for the safety of the inhabitants, by 
removing such person to a separate house or otherwise, 
and by providing nurses and other assistance and necessa- 
ries, which shall be at the charge of the person himself, his 
parents, or master, if able, otherwise at the charge of the 
town to which he belongs ; and if he is not an inhabitant 
of any town, at the charge of the commonwealth. 

24. If the infected person cannot be removed without 
danger to his health, the board shall make provision for 
him as directed in the preceding section in the house in 
which he may be ; and may cause the persons in the 
neighborhood to be removed, and take such other meas- 
ures as it judges necessary for the safety of the inhab- 
itants. 

25. The board of health of any town near to or border- 
ing upon either of the neighboring states, may appoint, 

i Stats. 1873, ch. 2, § 1. 



BOARD OF HEALTH. 431 

by writing, suitable persons to attend at places by which 
travellers may pass from infected places in other states ; 
who may examine such travellers as it suspects of bring- 
ing any infection dangerous to the public health, and if 
need be ma} T restrain them from travelling until licensed 
thereto by the board of health of the town to which such 
person may come. A traveller coming from such infected 
place who shall without such license travel within this state, 
(except to return by the most direct way to the state from 
whence he came,) after he has been cautioned to depart 
by the persons so appointed, shall forfeit a sum not ex- 
ceeding one hundred dollars. 

26. Two justices of the peace may if need be make out 
a warrant directed to the sheriff of the county, or his dep- 
uty, or to any constable, requiring them under the direc- 
tion of the board to remove any person infected with 
contagious sickness, or to impress and take up convenient 
houses, lodgings, nurses, attendants, and other necessa- 
ries, for the accommodation, safety, and relief, of the 
sick. 

27. When, upon the application of the board, it appears 
to a justice of the peace that there is just cause to suspect 
that any baggage, clothing, or goods, found within the 
town, are infected with the plague or other disease which 
may be dangerous to the public health, the justice shall, by. 
warrant directed to the sheriff or his deputy, or to any 
constable, require him to impress so many men as said 
justice may judge necessary to secure such baggage, cloth- 
ing, or other goods, and to post said men as a guard over 
the house or place where said articles are lodged ; who 
shall take effectual care to prevent persons from removing 
or coming near the same, until due inquiry is made into 
the circumstances. 

28. The justice may by the same warrant, if it appears 
to him necessar}% require the officers, under the direction 
of the board, to impress and take up convenient houses or 
stores for the safe-keeping of such articles ; and the board 
may cause them to be removed thereto, or otherwise de- 



432 TOWN AND PARISH OFFICER. 

tained, until, in the opinion of the board, they are freed 
from infection. 

29. The officers, in the execution of the warrant, shall 
if need be break open any house, shop, or other place, 
mentioned in the warrant, where such articles are ; and 
may require such aid as is necessar} r to effect the execution 
of the warrant. Whoever neglects or refuses to assist in 
the execution of the warrant, after being commanded to 
assist by either of said officers, shall forfeit a sum not ex- 
ceeding ten dollars. 

30. The charges of securing such articles, and trans- 
porting and purifying the same, shall be paid by the 
owners, at such rates and prices as may be determined by 
the board. 

31. When a sheriff or other officer impresses or takes 
up any houses, stores, lodging, or other necessaries, or 
impresses men, as provided in this chapter, the several 
parties interested shall be entitled to a just compensation 
therefor, to be paid by the town in which such persons or 
property are so impressed. 

32. When a person confined in a common jail, house of 
correction, or workhouse, has a disease which, in the opin- 
ion of the plrysician of the board or of such other physi- 
cian as it may consult, is dangerous to the safety and 
health of other prisoners or of the inhabitants of the 
town, the board shall by its order in writing direct the re- 
moval of such person to some hospital or other place of 
safety, there to be provided for and securely kept so as to 
prevent his escape until its further order. If such person 
recovers from the disease he shall be returned to said 
prison or other place of confinement. 

33. If the person so removed is committed by order of 
court or under judicial process, the order for his removal, 
or a copy thereof attested by the presiding member of the 
board, shall be returned by him, with the doings thereon, 
into the office of the clerk of the court from which the 
process of commitment was issued. No prisoner so re- 
moved shall thereby commit an escape. 



BOARD OF HEALTH. 433 

34. Parents and guardians shall cause their children 
and wards to be vaccinated before they attain the age of 
two years, and revaccinated whenever the selectmen or 
mayor and aldermen shall after five years from the last 
vaccination require it. For every year's neglect the party 
offending shall forfeit the sum of five dollars. 

35. The selectmen and mayor and aldermen shall require' 
and enforce the vaccination of all the inhabitants, and 1 , 
whenever in their opinion the public health requires it, the 
revaccination of all the inhabitants who do not prove to 
their satisfaction that they have been successfully vacci- 
nated or revaccinated within five years. All persons over 
twenty-one years of age, not under guardianship, who 
neglect to comply with any such requirement, shall forfeit 
the sum of five dollars. 

36. Towns shall furnish the means of vaccination to 
such of their inhabitants as are unable to pay for the 
same. 

37. Incorporated manufacturing companies ; superinten- 
dents of almshouses, state reform, and industrial schools, 
lunatic hospitals, and other places where the poor and sick 
are received ; masters of houses of correction, jailers, 
keepers of prisons, the warden of the state prison, and 
superintendents or officers of all other institutions sup- 
ported or aided by the state ; shall at the expense of their 
respective establishments or institutions cause all inmates 
thereof to be vaccinated immediately upon their entrance 
thereto, unless they produce sufficient evidence of previ- 
ous successful vaccination within ^ye years. 

38. Each town ma} r make further provision for the vac- 
cination of its inhabitants, under the direction of the board 
or a committee chosen for the purpose. 

39. A town may establish a quarantine ground in a suit- 
able place either within or without its own limits ; but if 
such place is without its limits, the assent of the town 
within whose limits it may be established shall be first 
obtained. 

40. Two or more towns may at their joint expense estab- 

28 



434 TOWN AND PARISH OFFICER. 

lish a quarantine ground for their common use in any suit- 
able place either within or without their own limits ; but if 
such place is without their limits, they shall first obtain the 
assent of the town within whose limits it may be. 

41. The board of health in each seaport town may from 
time to time establish the quarantine to be performed by 
vessels arriving within its harbor ; and may make such 
quarantine regulations as it judges necessary for the health 
and safety of the inhabitants. 

42. Such regulations shall extend to all persons, goods, 
and effects, arriving in such vessels, and to all persons who 
may visit or go on board of the same. 

43. Whoever violates any such regulation after notice 
thereof has been given in the manner before provided in 
this chapter, shall forfeit a sum not less than five nor more 
than five hundred dollars. 

44. The board in each seaport town may at all times 
cause a vessel arriving in such port, when such vessel or 
the cargo thereof is in its opinion foul or infected so as to 
endanger the public health, to be removed to the quaran- 
tine ground and thoroughly purified at the expense of the 
owners, consignees, or persons in possession of the same ; 
and may cause all persons arriving in or going on board of 
such vessel, or handling the cargo, to be removed to any 
hospital under the care of the board, there to remain under 
their orders. 

45. If a master, seaman, or passenger, belonging to a 
vessel on board of which any infection then is or has lately 
been, or suspected to have been, or which has been at or 
has come from a port where any infectious distemper pre- 
vails that ma} r endanger the public health, refuses to make 
answer on oath to such questions as may be asked him re- 
lating to such infection or distemper by the board of health 
of the town to which such vessel may come, (which oath 
any member of the board may administer,) such as master, 
seaman, or passenger, shall forfeit a sum not exceeding 
two hundred dollars ; and if not able to pay said sum he 
shall suffer six months' imprisonment. 



BOARD OF HEALTH. 435 

46. All expenses incurred on account of any person, 
vessel, or goods, under quarantine regulations, shall be 
paid by such person or the owner of such vessel or goods 
respectively. 

But this does not include the expenses of a seaman at a hospital, 
to which he had been transferred by order of the board of health of a 
town, and which is under their care. 1 

47. Any town may establish within its limits, and be 
constantly provided with, one or more hospitals for the 
reception of persons having a disease dangerous to the 
public health. 

Any town may erect, establish, and maintain a hospital for the 
reception of persons who, by misfortune or poverty, may require 
relief during temporary sickness. And the selectmen of any town 
shall have power to make such ordinances, rules, and regulations as 
they may deem expedient, for the appointment of trustees and all 
other officers, agents, and servants necessary for managing such hos- 
pital. 2 

48. Such hospitals shall be subject to the orders and 
regulations of the board, or of a committee of the town 
appointed for that purpose. 

49. No such hospital shall be established within one 
hundred rods of an inhabited dwelling-house situated in an 
adjoining town, without the consent of such town. 

50. When a hospital is so established, the physician, 
nurses, attendants, the persons sick therein, and all per- 
sons approaching or coming within the limits of the same, 
and all furniture and other articles used or brought there, 
shall be subject to such regulations as may be made by 
the board of health or the committee appointed for that 
purpose. 

5 1 . When a disease dangerous to the public health breaks 
out in any town, the board shall immediatel} 7 provide such 
hospital or place of reception for the sick and infected as 
is judged best for their accommodation and the safety of 
the inhabitants ; which shall be subject to the regulations 
of the board ; and the board may cause any sick and in- 

1 Provincetown v. Smith, 120 Mass. 96. 2 Stats. 1873, ch. 192. 



436 TOWN AND PARISH OFFICER. 

fected person to be removed thereto, unless the condition 
of such person will not admit of his removal without dan- 
ger to his health, in which case the house or place where 
he remains shall be considered as a hospital, and all per- 
sons residing in or in any way concerned within the same 
shall be subject to the regulations of the board as before 
provided. 

52. When such disease is found to exist in a town, the 
selectmen and board of health shall use all possible care to 
prevent the spreading of the infection, and to give public 
notice of infected places to travellers, by displaying red 
flags at proper distances, and by all other means which in 
their judgment shall be most effectual for the common 
safety . (And whoever obstructs the selectmen, board of 
health, or their agent, in using such means to prevent the 
spreading of the infection, or wilfully removes, obliterates, 
defaces, or handles the red flags, or other signals so dis- 
played, shall forfeit for such offence a sum not less than 
ten or more than one hundred dollars. 1 ) 

53. If a physician or other person in any of the hospitals 
or places of reception before mentioned, or who attends, 
approaches, or is concerned with, the same, violates any 
of the regulations lawfully made in relation thereto, either 
with respect to himself, or his or any other person's prop- 
erty, he shall for each offence forfeit a sum not less than 
ten nor more than one hundred dollars. 

54. When a householder knows that a person within his 
family is taken sick of small-pox or any other disease dan- 
gerous to the public health, he shall immediately give 
notice thereof to the selectmen or board of health of the 
town in which he dwells. If he refuses or neglects to give 
such notice, he shall forfeit a sum not exceeding one hun- 
dred dollars. 

55. When a physician knows that any person whom he 
is called to visit is infected with small-pox or any other 
disease dangerous to the public health, he shall immediately 
give notice thereof to the selectmen or board of health of 

l Stats. 1873, ch. 2, § 2. 



BOARD OF HEALTH. 437 

the town ; and if he refuses or neglects to give such notice, 
he shall forfeit for each offence a sum not less than fifty 
nor more than one hundred dollars. 

56. Expenses incurred by a town in the removal of nui- 
sances or for the preservation of the public health, and 
which are recoverable of a private person or corporation 
by virtue of any provisions of law, may be sued for and 
recovered in an action of contract. 

57. Fines and forfeitures incurred under general laws, 
the special laws applicable to a town, or the by-laws and 
regulations of a town relating to health, shall inure to the 
use of such town. 1 

58. (The provisions of foregoing sections twenty- three, 
twenty-four, fifty-one, fifty- two, and fifty-three, shall not 
apply to small-pox.) 

59. The board shall from time to time assign certain 
places for the exercising of any trade or employment which 
is a nuisance or hurtful to the inhabitants, or dangerous to 
the public health, or the exercise of which is attended by 
noisome and injurious odors, or is otherwise injurious to 
their estates, and may prohibit the exercise of the same in 
places not so assigned ; the board may also forbid the ex- 
ercise of such trade or employment within the limits of 
the town or in any particular localit} 7 thereof. All such 
assignments shall be entered in the records ; and may be 
revoked when the board shall think proper. 2 

60. If the selectmen acting as a board of health bring a bill in 
equity to restrain the exercise of an offensive trade or employment 
which they have prohibited, under the foregoing section the supreme 
court have power to allow an amendment thereof, by substituting the 
inhabitants of the town as plaintiffs, after the term of office of the 
selectmen has ceased. 3 

61. When it appears on trial before the superior court 
for the county, upon a complaint made by any person, that 
any place or building so assigned has become a nuisance, 
by reason of offensive smells or exhalations proceeding 

i Gen. Stats, ch. 26, §§ 15-50. 3 Winthrop v. Fnrrar, 11 Allen, 

2 Gen. Stats, ch. 26, § 52. 398. 



438 TOWN AND PARISH OFFICER. 

from the same, or is otherwise hurtful or dangerous to the 
neighborhood or to travellers, the court may revoke such 
assignment and prohibit the further use of such place or 
building for the exercise of either of the aforesaid trades or 
emploj-ments, and may cause such nuisance to be removed 
or prevented. 

62. A person injured either in his comfort or the enjoy- 
ment of his estate by such nuisance, may have an action 
of tort for the damage sustained thereby. 

63. Orders of prohibition under section fifty-two (fifty- 
nine above) shall be served upon the occupant or person 
having charge of the premises where such trade or employ- 
ment is exercised. If the party upon whom such order 
is served, for twenty-four hours after such service refuses 
or neglects to obey the same, the board shall take all ne- 
cessary measures to prevent such exercise ; and the person 
so refusing or neglecting shall forfeit a sum not less than 
fifty nor more than five hundred dollars. 1 

64. But an order by the selectmen of a town, acting as a board of 
health, forbidding the exercise of an offensive trade or employment 
therein, need not be served by an officer. 2 

65. Any person aggrieved by such order may appeal 
therefrom, and shall within three days from the service 
thereof upon him apply to the superior court, if in session 
in the county where such order is made, or in vacation to 
any justice of said court, for a jury ; and such court or 
justice shall issue a warrant for a jury, to be impanelled at 
a time and place expressed in the warrant, in the manner 
provided in regard to the laying out of highways. 3 

66. Whenever any person by mistake of law or fact or 
by accident fails to appeal from any order of any board of 
health and to apply to the superior court or any justice 
thereof for a jury within the three days limited therefor 
by section fifty-six of chapter twenty-six of the General 
Statutes (preceding section) , such person may at any time 
thereafter appeal from such order and apply for a jury 

i Gen. Stats, ch. 26, §§ 53-55. 3 Gen. Stats, ch. 26, § 56. 

2 Winthrop v. Farrar, 11 Allen, 398. 



BOARD OF HEALTH. 439 

with the same effect as if done within the said three days : 
provided, that such person so appealing and applying shall 
make it appear to the court or justice that such failure was 
caused by mistake or accident ; and provided, also, that 
such appeal and application shall be made within thirty 
days after service of such order upon such applicant. 1 

67. During the pendency of the appeal such trade or 
employment shall not be exercised contraiy to the order ; 
and upon any violation of the same the appeal shall forth- 
with be dismissed. 

68. The verdict of the jury, which may either alter the 
order, or affirm or annul it in full, shall be returned to the 
court for acceptance as in case of highwaj^s ; and said 
verdict when accepted shall have the authority and effect 
of an original order from which no appeal had been taken. 

69. If the order is affirmed by the verdict, the town 
shall recover costs against the appellant ; if it is annulled, 
the appellant shall recover damages and costs against the 
town ; and if it is altered, the court may render such 
judgment as to costs as in their discretion ma} 7 seem just. 2 

70. The boards of health of towns and the major and 
aldermen of cities shall, on or before the first day of July 
next (1872), and each year thereafter, license a suitable 
number of undertakers to take charge of the obsequies or 
funeral rites preliminary to the interment of a human 
body, if, in the judgment of such boards, a sufficient num- 
ber are not already licensed in their respective places. 
An}' undertaker, having such charge, shall forthwith obtain 
and return, to the clerk of the city or town in which the 
deceased resided or the death occurred, the facts required, 
by chapter twent}~-one of the General Statutes (chapter 
fort3 T -nine of this work) , to be recorded by said officer con- 
cerning the deceased ; the clerk shall thereupon give to 
the undertaker a certificate as provided for in section four 
of said chapter, which certificate the undertaker shall de- 
liver to the person having charge of the interment in 
accordance with the provisions of said fourth section. 

i Stats. 1865, ch. 263. 2 Gen. Stats, ch. 26, §§ 57-59. 



440 TOWN AND PARISH OFFICER. 

Any undertaker violating any of the provisions of this act 
shall be punished by a fine of twenty dollars for each vio- 
lation of the duties herein prescribed, to be imposed by 
any court of competent jurisdiction. 

71. Nothing herein contained shall exempt any sexton 
or other person named in the fourth section of the twenty- 
first chapter of the General Statutes (chapter fortj-nine 
section four of this work) from the provisions and penal- 
ties prescribed in said section in cases where an undertaker 
appointed as provided in this act is not employed in 
charge of the obsequies. 1 

72. The mayor and aldermen of any city or the select- 
men of any town may license any person to establish or 
keep within their respective cities and towns a lying-in 
hospital, hospital ward, or other place for the reception, 
care, and treatment of women in labor : provided, that the 
board of health in such city or town shall first certify to 
the mayor and aldermen or selectmen that the person ap- 
plying for such license is in their judgment a suitable per- 
son and that from the inspection and examination of such 
hospital, hospital ward, or other place aforesaid by said 
board of health, the same is suitable and properly arranged 
and provided for such business. 

73. Such licenses shall continue in force for the term of 
two 3'ears, subject, however, to revocation by the mayor 
and aldermen or selectmen of the city or town. 

74. Every hospital, hospital ward, or other place estab- 
lished or kept by virtue of a license granted as hereinbe- 
fore provided, shall be subject to visitation and inspection 
by the board of health, the chief of police, the mayor of 
the city or selectmen of the town, at any time, and any 
such hospital, hospital ward, or other place which receives 
in a year more than six women as patients in labor, shall 
also be subject to visitation and inspection by the state 
board of health. 

75. Whoever establishes or keeps, or is concerned in 
establishing or keeping any hospital, hospital ward, or 

i Stats. 1872, ch. 275, §§ 1, 2. 



BOARD OF HEALTH. 441 

other place for the purposes aforesaid, or whoever is en- 
gaged in any such business, without such license, shall for 
the first offence forfeit a sum not exceeding five hundred 
dollars, one half of which forfeiture shall be paid to the 
complainant and the other half to the city or town, and 
for any subsequent offence shall be punished by imprison- 
ment in the jail or house of correction for a term not 
exceeding two years. 1 

76. Whoever engages in the business of taking nursing 
infants or infants under three years of age to board, or of 
entertaining or boarding more than two such infants in the 
same house at the same time, shall within two days after 
the reception of each such infant beyond the first two, 
give written notice to the board of health of the city or 
town where such infant is so to be entertained or boarded, 
specifying the name and age of the child and the name 
and place of residence of the party so undertaking its 
care ; and such board of health shall have the right to 
enter and inspect said house and premises while said busi- 
ness is being carried on, and to direct and enforce such 
sanitary measures respecting such children and premises 
as it may deem proper. 

77. An}^ person violating any of the provisions of this 
act, or refusing admission to such board of health for the 
purpose mentioned in the preceding section, shall, on con- 
viction thereof, be punished by a fine of not less than fifty, 
nor more than five hundred dollars. 2 

78. In any case arising under the provisions of the 
twenty-sixth chapter of the General Statutes and the acts 
in addition thereto, in which the board of health shall have 
acted, said board of health shall retain charge of the same 
to the exclusion of the overseers of the poor of any city or 
town. 

79. All reasonable expenses which have been hereto- 
fore, or may hereafter be incurred by the board of health 
of any city or town, in making the provision required by 
law for an} T person infected with the small-pox or any other 

i Stats. 1876, ch. 157. 2 stats. 1876, ch. 158. 



442 TOWN AND PARISH OFFICER. 

disease dangerous to the public health, shall be paid by 
the person himself, his parents, or master, if able ; other- 
wise by the town in which he has a legal settlement, and 
if he has no settlement in any town, by the commonwealth, 
in which case the bills therefor shall be approved by the 
board of state charities. 1 

1 Stats. 1874, ch. 121. 



THE PROMOTION OF ANATOMICAL SCIENCE. 443 



CHAPTER LI. 
THE PROMOTION OF ANATOMICAL SCIENCE. 

1. The overseers of the poor of a town, the mayor and 
aldermen of a city, and the inspectors and superintendent 
of a state almshouse, may to any physician or surgeon, 
upon his request, give permission to take the bodies of 
such persons dying in such town, city, or almshouse, as 
are required to be buried at the public expense, to be by 
him used within the state for the advancement of anatomi- 
cal science ; preference being given to medical schools 
established by law, for their use in the instruction of stu- 
dents. 

2. Every physician or surgeon, before receiving any 
such dead body, shall give to the board of officers surren- 
dering the same to him, a sufficient bond that each body 
shall be used only for the promotion of anatomical science 
within this state, and so as in no event to outrage the pub- 
lic feeling ; and that, after having been so used, the re- 
mains thereof shall be decently buried. 

3. Persons having charge of a poorhouse, workhouse, 
or house of industry, in which a person required to be 
buried at the public expense dies, shall forthwith give no- 
tice of such death to the overseers of the poor of the town 
or to the mayor and aldermen of the city in which such death 
occurs ; and except in case of necessity the body of such 
person shall not be buried until such notice is given, and 
permission therefor granted by such overseers or mayor 
and aldermen ; nor without their permission shall the body 
be surrendered for dissection or mutilation. 

4. If the deceased person during his last sickness, of his 
own accord requested to be buried, or if, within twenty-four 
hours after his death, any person claiming to be and satis- 



444 TOWN AND PARISH OFFICER. 

fying the proper authorities that he is a friend or of kin- 
dred to the deceased, asks to have the body buried, or if 
such deceased person was a stranger or traveller who sud- 
denly died, the body shall not be so surrendered, but shall 
be buried. 1 

1 Gen. Stats, ch. 27, §§ 1-4. 



CEMETERIES AND BURIALS. 445 



CHAPTER LIL 
CEMETERIES AND BURIALS. 

1. Each town and city shall provide one or more suitable 
places for the interment of persons d} T ing within its limits. 

2. Except in the case of the erection or use of a tomb 
on private land for the exclusive use of the family of the 
owner, no land, other than that already so used or appro- 
priated, shall be used for the purpose of burial, unless by 
permission of the town or of the mayor and aldermen of 
the city in which the same is situated. 

3. Boards of health may make all regulations which they 
judge necessary concerning burial grounds and interments 
within their respective limits ; may prohibit the use of 
tombs by undertakers, (as places of deposit for bodies 
committed to them for burial,) for the purpose of specula- 
tion, and ma}^ establish penalties not exceeding one hun- 
dred dollars for any breach of such regulations. 

4. Notice of such regulations shall be given by publish- 
ing the same in some newspaper of the town, or city, or, 
if there is no such newspaper, by posting a copy in some 
public place therein ; which shall be deemed legal notice 
to all persons. 1 

5. And they may make regulations prohibiting all persons, ex- 
cept the superintendent of the cemetery, or a duly appointed under- 
taker, or other person specially authorized, from removing the dead 
body of any person from any house or place within the city or town, 
to the place of burial, and may require from each undertaker a bond 
with a reasonable penalty, and with condition to collect and account 
for the burial fees. And the fact that such a regulation may be made 
with reference to a particular person, will not affect its validity. And 
if such person, having been so appointed as undertaker, fails to give 

i Gen. Stats, ch. 28, §§ 4-7. 



446 TOWN AND PARISH OFFICER. 

the required bond, the board of health may revoke his appointment 
at pleasure, without previous notice to him. 1 

6. The word " interments " properly includes and describes the 
removal of the bodies of deceased persons for the purpose of burial. 
That this necessary duty shall be performed, especially when under- 
taken for hire by suitable and trustworthy persons, and that the 
moving of dead bodies through public streets shall be conducted with 
decency and safety, are obviously matters proper for municipal regu- 
lation, and which, as well as the mode of burial, may concern the pub- 
lic health to no slight extent. 1 

7. Before a tomb, burial ground, or cemetery, is closed 
by order of the board of health, for a time longer than one 
month, all persons interested shall have an opportunity to 
be heard, and personal notice of the time and place of 
hearing shall be given to at least one owner of the tomb, 
and to three at least, if so many there are, of the proprie- 
tors of such burial ground or cemetery, and notice shall 
also be published two successive weeks at least preceding 
such hearing, in two newspapers, if so many there are, 
published in the county. 

8. The owner of a tomb aggrieved by the order of the 
board of health closing any tomb, burial ground, or ceme- 
tery, may appeal therefrom, and at any time within six 
months from the date of the order enter his appeal in the 
superior court ; and the appellant shall give the board of 
health fourteen daj^s' notice of his appeal previous to the 
entry thereof. But the order of the board shall remain in 
force until a decision shall be had on the appeal. 

9. Appeals shall be tried in regular course before a jury, 
and if the jury find that the tomb, burial ground, or cem- 
etery, so closed, was not a nuisance, nor injurious to the 
public health at the time of the order, the court shall re- 
scind the same so far as it affects such tomb, burial ground, 
or cemetery, and execution for costs of the appeal shall 
issue in favor of the appellant against the town or city in 
which the same was situated. But if the order is sustained, 
execution shall issue for double costs against the appellant 
in favor of the board of health for the use of the town or 
city. 

l Commonwealth v. Goodrich, 13 Allen, 546. 



CEMETERIES AND BURIALS. 447 

10. For every interment in violation of section five (sec- 
tion two above) in a town or city in which the notice pre- 
scribed in section seven (section four above) has been 
given, the owner of the land so used shall forfeit not less 
than twenty nor more than one hundred dollars. 

11. Whoever wrongfully destroys, impairs, injures, or 
removes, a tomb, gravestone, building, fence, railing, or 
other thing, lawfully erected in or around a place of burial 
or cemetery, or a tree, shrub, or plant, situate within its 
limits ; or wrongfully injures a walk or path therein, or 
places rubbish or offensive matter within a place of burial 
or cemetery, or commits any nuisance therein, or in any 
way desecrates or disfigures the same, shall forfeit for 
every such offence not less than five nor more than one 
hundred dollars. Upon the trial of a prosecution for the 
recovery of such penalty, use and occupation for the pur- 
poses of burial shall be deemed sufficient evidence of 
title. 3 

12. As to the question what constitutes a public burial ground, in 
Commonwealth v. Viall, 2 it is held that an ancient burial ground, 
which for sixty years has been separated by a fence from the adjoin- 
ing land, and used occasionally for burials until the present time, may 
be described as a public burial ground in an indictment for destroying 
trees in a place of burial, under the foregoing section, although it can 
only be reached by a way, which has always been used for the pur- 
pose, over an adjoining private estate, of which it was originally a 
part, and the owners of which built and have maintained the fence for 
their own convenience, and have depastured the burial ground, cut 
the trees upon it, and cultivated part of it at their pleasure, under a 
claim of right, and no one else has exercised or claimed any control 
over the same until the town in which it lies assumed the charge 
thereof within three years. 

And the court further say, that cutting trees upon a public burial 
ground for purposes of private profit, without consent of the public 
authorities having charge of it, is a violation of the foregoing section, 
although the person who cuts them is the owner of the fee of the 
land, and honestly believes that his acts are lawful. 

13. Any person holding, occupying, or interested in any lot in the 
public burying grounds in any city or town in this commonwealth, 
may deposit with the treasurer of any such city or town any sum of 
money, not exceeding five hundred dollars, which sum thus depos- 

1 Gen. Stats, ch. 28, §§ 8-12. 2 2 Allen, 512. 



448 TOWN AND PARISH OFFICER. 

ited shall be entered upon the books of the treasury, and held in 
accordance with the provisions of the ordinances or by-laws of such 
city or town, in relation to the interment of the dead. 

The purpose for which such deposit may be made, shall be to pro- 
vide for the care, keeping, and preservation of the fences, trees, shrub- 
bery, monuments, tombs, and other appendages of the lot of such 
person. 

Any city or town may receive money for the purpose aforesaid, 
and allow interest for the same at a rate not exceeding six per cen- 
tum per annum ; and may establish any by-laws or ordinances not 
repugnant to the laws of this commonwealth, as may be necessary 
for the purposes of this act 1 (this section). 

14. When there is a necessity for a new burial ground 
in any town, or for the enlargement of any burial ground 
alread} T existing in and belonging to a town, and the owner 
or any person interested in the land needed for either pur- 
pose refuses to sell the same, or demands therefor a price 
deemed by the selectmen of said town unreasonable, or is 
unable for an}' reason to convey the land, said selectmen 
may, with the approbation of the town, make application 
therefor by written petition to the commissioners of the 
county wherein the land is situated. 

15. The commissioners shall appoint a time and place 
for a hearing, and shall cause notice thereof, together with 
a copy of said petition, to be served personally upon the 
land owner or owners, or left at his or their place or places 
of abode fourteen days at least before the time appointed 
for the hearing. If the land be held in trust or by a cor- 
poration, or the ownership be uncertain, the commission- 
ers shall also require notice by public advertisement or 
otherwise, as justice to all persons interested shall seem to 
them to require. 

16. The commissioners shall hear the parties at the time 
and place appointed, or at an adjournment thereof ; and 
as soon as may be after the hearing shall consider and 
adjudicate upon the necessity of such taking, and upon 
the quantity, boundaries, damages, and value of the land 
adjudged necessary to be taken, and shall forthwith file a 
description of such land with a plan thereof in the registry 

1 Stats. 1870, ch. 225. 



CEMETERIES AND BURIALS. 449 

of deeds of the county and district wherein such land lies, 
and thereupon such land shall be taken and held in fee by 
the town as a burial ground or as part of the burial ground 
of such town. 

17. Each commissioner shall be paid by the town three 
dollars per day for each day spent in acting under the pe- 
tition, and five cents a mile for travel to and from the 
place of hearing. 

18. When the owner or owners of the land, or any per- 
son in interest, is aggrieved by the award of damages, he 
or they may, upon application therefor within one year, 
have the matter of the complaint determined by a jury, as 
in the case of assessment of damages for highways, and 
all proceedings shall be conducted as in such case is pro- 
vided. If the sum allowed for damages, including the 
value of the land, is increased b}^ the jury, the sum so 
allowed by the jury, and all charges, shall be paid by the 
town ; otherwise the charges arising upon such applica- 
tion for a jury shall be paid by the applicant. The appli- 
cant for a jury shall enter into a recognizance in such sum 
and with such surety as the commissioners shall order for 
the payment of such charges. 

19. Towns may grant and vote such sums as they may 
judge necessary for inclosing any cemetery or burial 
ground provided by them according to law, or to construct 
paths and avenues and to embellish the grounds in the 
same, and they may establish all necessary rules in rela- 
tion to such cemeteries or burial grounds as are not repug- 
nant to the laws of the commonwealth. Towns inay lay 
out any such cemetery or burial ground into lots or sub- 
divisions for burial places as they may think proper, but 
they shall set apart a suitable portion as a public burial 
place for the use of the inhabitants, free of charge there- 
for. Towns may sell and convey to any persons, whether 
residents of the town or otherwise, the exclusive right of 
burial and of erecting tombs and cenotaphs upon any lot, 
and of ornamenting the same, upon such terms, condi- 
tions, and regulations as they shall prescribe, and the pro- 

29 



450 TOWN AND PARISH OFFICER. 

ceeds of such sales in any cemetery or burial ground shall 
be paid into the town treasury, be kept separate and apart 
from other funds, and be appropriated to reimburse the 
town for the cost of land or for the improvement and em- 
bellishment of such cemetery or burial ground. 1 

20. Cemetery corporations may take and hold funds 
upon trust to apply the income thereof to the improve- 
ment or embellishment of the cemetery, or to the care, 
preservation, or embellishment of any lot, or its appurte- 
nances. 2 

i Stats. 1877, ch. 69. 2 Stats. 1874, ch. 190. 



STREET RAILWAYS. 451 



CHAPTER Lin. 

STREET RAILWAYS. 

1. The board of aldermen of any city, or the selectmen 
of any town, in which any corporation is authorized to 
construct a street railwa}', may, upon the petition of such 
corporation, locate the tracks thereof within their respec- 
tive jurisdictions, pursuant to the provisions of its charter : 
provided, that before proceeding to locate such tracks, they 
shall give notice to all parties interested, by publication in 
such newspapers, or otherwise, as they may determine, at 
least fourteen days before their meeting, of the time and 
place at which they will consider such location. After a 
hearing of all parties interested, they shall pass an order 
refusing the location, or granting the same, or any portion 
thereof, under such restrictions as they deem the interests 

I of the public may require, and the location thus granted 

1 shall be deemed and taken to be the true location of the 

tracks of the corporation, if its acceptance thereof in 

writing is filed with said mayor and aldermen or selectmen 

within thirty days after receiving notice thereof. 1 

2. The location and position of the tracks of any cor- 
poration may be altered upon application of any party 
interested, by the same authority, and in the same man- 
ner, as is provided in the preceding section, for the origi- 
nal location. The expense of such alteration, which shall 
be made by the corporation within such time after such 
alteration shall have been ordered, as the board of alder- 
men or selectmen may determine, shall be borne by such 
party as the board of aldermen or selectmen may deter- 
mine. 

1 Stats. 1874, ch. 29, § 6, makes roads of corporations organized un- 
the same provision as to locating der the general laws. 



452 TOWN AND PARISH OFFICER. 

3. The board of aldermen of any city, or the selectmen 
of any town, may, at any time after the expiration of one 
year from the times of the opening for use of any street 
railway in such city or town, if in their judgment the inter- 
ests of the public require, after notice published as provided 
in the preceding sections and a hearing, order that the lo- 
cation of any of the tracks in any street or highway shall 
be revoked, and the railway corporation shall thereupon 
remove the same, in conformity with such order, and put 
the street in as good condition as it was in immediately 
before being occupied by said tracks. 

4. If an}^ corporation neglects to execute any order and 
make the repairs as prescribed in the preceding section, 
after thirty days' notice thereof, then the board of alder- 
men or selectmen may cause the same to be executed and 
made at the expense of the corporation, to be recovered 
in an action of tort. 

5. The board of aldermen of any city, or the selectmen 
of any town, in which a street railway is operated, may, 
from time to time, establish by an order such rules and 
regulations as to the rate of speed, mode and use of the 
tracks, and removal of snow and ice from the same, as in 
their judgment the interest and convenience of the public 
may require. 

6. If any corporation, its servants or agents, wilfully 
or negligently violates any rule or regulation established 
in the manner provided in the preceding section, such cor- 
poration shall be liable to a penalty of not more than five 
hundred dollars for each offence. 

7. Cities and towns may take up any of the streets or 
highways traversed by street railways, for any purpose 
for which they are now authorized to take up the same, or 
may alter or discontinue the same, as now authorized by 
law, without being liable in damages therefor to any rail- 
way corporation or the owners of its stock. 

8. Every corporation, its lessees or assigns, shall keep 
in repair such portions of any paved streets, roads, and 
bridges as are occupied by its tracks ; and when such 



STREET RAILWAYS. 453 

tracks occupy streets or roads that are not paved, it shall, 
in addition to the portion occupied by its tracks, keep in 
repair eighteen inches on each side thereof, to the satisfac- 
tion of the superintendent of streets, the street commis- 
sioner, or the surveyors of highways, and shall be liable 
for any loss or injury that any person may sustain by 
reason of any carelessness, neglect, or misconduct of its 
agents and servants, in the construction, management, and 
use of its tracks. 

9. In case any recovery is had against any city or town, 
steam railroad, turnpike or bridge corporation respectively, 
by reason of any defect or want of repair caused or per- 
mitted by a corporation of that part of any street, high- 
way, or bridge occupied by its tracks, or by reason of any 
defect in any part of any street, highway, or bridge occu- 
pied by its tracks, caused by a corporation, its lessees or 
assigns or their agents or employes, said corporation, its 
lessees or assigns, shall be liable to said city, town, or 
corporation respectively, for any sums recovered against 
either of them, together with all costs and reasonable 
expenditures incurred in the defence of any suit or suits 
in which recovery is had by reason of such defect or 
want of repair: provided, the corporation, its lessees 
or assigns, had reasonable notice of such suit or suits, and 
an opportunity to assume the defence thereof; and pro- 
vided, further, that such defect or want of repair was not 
caused by said city or town, its agents or servants, exer- 
cising the powers reserved to cities and towns in section 
twenty-one of this act (preceding section) , or by said other 
corporations, their agents or servants. 

10. Every corporation, its lessees or assigns, shall erect 
and maintain upon every bridge or draw of a bridge over 
which its track is located and used, suitable guards or 
railings sufficient to prevent the cars of said corporation 
from running off said bridge or draw ; such guards or rail- 
ings to be erected and maintained to the satisfaction of 
the board of aldermen of the city, or the selectmen of the 
town, in which such draw or bridge or any portion thereof 
may be situated. 



454 TOWN AND PARISH OFFICER. 

11. If any corporation, its lessees or assigns, for sixty 
days neglects to comply with any order of a board of al- 
dermen of a city, or the selectmen of a town, duly served 
upon it under the provisions of the preceding section, it 
shall for each month during which such neglect shall con- 
tinue, in excess of such sixty days, forfeit the sum of two 
hundred dollars, to be recovered to the use of said city or 
town. 

12. If a corporation voluntarily discontinues the use of 
any part of its tracks for a period of six months, the 
streets or highwa}'s occupied by the same shall, upon the 
order of the board of aldermen of the city, or the select- 
men of the town, forthwith, at the expense of said com- 
pany, be cleared of said tracks, and put in as good condition 
for the public travel as they were in immediately before 
being so occupied. 

13. The board of aldermen of any city, or the select- 
men of any town, ma}' order any corporation to discon- 
tinue, temporarily, the use of any tracks within the limits 
of such city or tow^n, whenever they adjudge that the 
safety or convenience of the inhabitants require such dis- 
continuance. 

14. All corporations shall construct and maintain their 
tracks of a uniform gauge of four feet eight and one-half 
inches. 

15. The board of aldermen of any city, or the select- 
men of any town, may establish such regulations for giving 
notice or warning of the approach of street cars by the 
driver or conductor, as shall in their opinion best secure 
the unobstructed use of the tracks and the free passage 
of the cars. 

16. Whoever wilfully and maliciously obstructs any 
corporation, its lessees or assigns, in the legal use of any 
railway tracks, or delays the passing of the cars or rail- 
way carriages thereon, such person, and all who shall be 
aiding and abetting therein, shall be punished by a fine 
not exceeding five hundred dollars, or may be impris- 
oned in the common jail for a period not exceeding three 
months. 



STREET RAILWAYS. 455 

17. If any corporation, its agents or servants, wilfully 
or negligently obstructs any street or highway, or hinders 
the passing of carriages over the same, or wilfully detains 
the cars of any other company having the lawful right to 
pass thereon, such corporation shall be punished by a fine 
not exceeding five hundred dollars ; and the agent or ser- 
vant so offending shall be punished by a fine not exceed- 
ing ten dollars for each offence, or by imprisonment in the 
common jail for a period not exceeding three months. 1 

18. Every corporation shall furnish reasonable accom- 
modations for the conveyance of passengers, and for every 
wilful neglect to provide the same shall be punished by a 
fine of not less than five nor more than twenty dollars for 
each offence, and the directors thereof ma}' establish the 
rates of fare on all passengers and property conveyed or 
transported in its cars, subject, however, to the limitations 
named in its charter, or hereinafter set forth. 

19. The board of aldermen of any city, the selectmen 
of any town, or fifty legal voters of any city or town in 
which any street railway is located, may apply to the 
board of railroad commissioners, who shall, after due no- 
tice and hearing of the parties interested, revise and regu- 
late the fares as determined by the corporations ; but such 
fare shall not, without the consent of the corporation, be 

| so reduced as to yield, with all other profits derived from 
operating its road, an income of less than ten per centum 
upon the actual cost of the construction of its road and 
the purchase of property for its necessary use, to be de- 

i termined by said commissioners. The report of the com- 
missioners shall be final and conclusive for at least one 
year. The expense of said application and hearing shall 
be borne by such party as the said board may determine. 

20. Nothing contained in the two preceding sections 
shall be held to authorize any corporation or said commis- 
sioners to raise the rate of fare, or the price of tickets, 
above what has been heretofore established as such rate 
or price for any locality, by agreement made as a condi- 

i Stats. 1871, ch. 381, §§ 14-30. 



456 TOWN AND PARISH OFFICER. 

tion of location or otherwise between a corporation or its 
directors, and the mayor and aldermen of any city or the 
selectmen of any town, except by a mutual arrangement 
with the mayor and aldermen or selectmen with whom such 
agreement was made. 1 

21. Corporations may use such motive power on their 
respective tracks or roads as the board of aldermen of 
cities, or the selectmen of towns, through which they are 
located, may from time to time permit. 

22. Every corporation shall be responsible in damages 
to an}' person whose buildings or other property is injured 
by fire communicated by its locomotive engines, and shall 
have an insurable interest in the property, upon its route, 
for which it may be so held responsible, and may procure 
insurance thereon in its own behalf. 2 

23. The board of aldermen of any city and the select- 
men of any town may, from time to time, upon petition, 
authorize and empower any street railwa}^ corporation, its 
lessees and assigns, whose charter has been duly accepted, 
and whose tracks have been located and constructed, to 
extend the location of its tracks within the territorial lim- 
its of such city or town, whenever it can be done without 
entering upon or using the tracks of any other street rail- 
way corporation, under such restrictions as they deem the 
interests of the public may require. And the location 
thus authorized shall be deemed and taken to be the true 
location of the tracks of the corporation, if its acceptance 
thereof, in writing, is filed in the office of the clerk of 
such city or town within thirt}' days after receiving notice 
thereof. Before acting upon the petition, notice of the 
time and place of hearing shall be given to all parties in- 
terested, by publication at least fourteen days prior thereto, 
in such newspapers or otherwise as the board of aldermen 
or selectmen may determine. 

Whenever the board of aldermen of any city, or the selectmen of 
any town, after due notice and hearing, shall decide that public ne- 
cessity and convenience so require, they may authorize and empower 

i Stats. 1871, ch. 381, §§ 33-35. 2 stats. 1871, ch. 381, §§ 44, 45. 



STREET RAILWAYS. 457 

any street railway corporation, its lessees and assigns, whose tracks 
have been duly located in such city or town and who own and operate 
not less than two consecutive miles of track, to enter upon and use 
with its horses and cars, within defined limits, the tracks of any other 
street railway corporation therein, which it may meet or cross, sub- 
ject to the provisions of law relating to such entry and use. 

The board of aldermen or selectmen may, from time to time, 
make such regulations as to the manner and extent of use of tracks 
and the number and routes of cars of any and all companies run- 
ning over the same within their city or town, as the interests of pub- 
lic travel shall require. 

Where the track, operated by a corporation, seeking to enter upon 
and use, or sought to be entered upon and used b} r another under the 
provisions of this section, is in two or more cities or towns, and the 
selectmen or boards of aldermen of such cities or towns are unable 
to agree as to the public necessity for such entrance and use, the 
board of railroad commissioners shall, upon the petition of either 
corporation, and after due hearing, decide whether such entry and 
use is required on grounds of public convenience and necessity, and 
determine the extent of use of tracks, and the number and routes of 
cars ; and the decision of said board shall be final. 1 

1 Stats. 1874, ch. 29, §§ 11-14. 



458 TOWN AND PARISH OFFICER. 



CHAPTER LIV. 
TELEGRAPH COMPANIES. 

1. (Every company incorporated for the transmission 
of intelligence by electricity) may under the provisions of 
the following section construct lines of electric telegraph 
upon and along the highways and public roads, and across 
any waters within the state, by the erection of the posts, 
piers, abutments, and other fixtures (except bridges), ne- 
cessary to sustain the wires of its lines ; but shall not in- 
commode the public use of highways or public roads, nor 
endanger or interrupt the navigation of any waters. 

2. The mayor and aldermen or selectmen of any place 
through w 7 hich the lines of a company are to pass, shall 
give the company a writing specifying where the posts may 
be located, the kind of posts, and the height at which and 
the places where the wires may run. After the erection of 
the lines, having first given the company or its agents op- 
portunity to be heard, they may direct any alteration in the 
location or erection of the posts, piers, or abutments, and 
in the height of the wires. Such specifications and deci- 
sions shall be recorded in the records of the city or town. 1 

The foregoing sections apply to companies incorporated under the 
laws of this state. The determination of the selectmen as to where 
the posts may stand, is conclusive upon the rightfulness of their erec- 
tion within the limits of a highway. 2 

3. An owner of land near to or adjoining a highway or 
road along which lines are constructed b}^ the company, 
who considers himself injured thereby, may within three 
months after such construction apply to the mayor and 
aldermen or selectmen to assess and appraise his damage. 
Before entering upon the service they shall severally be 

i Gen. Stats, ch. 64, §§ 2, 3. 2 Commonwealth v. Boston, 97 Mass. 555. 



TELEGRAPH COMPANIES. 459 

sworn faithfully and impartially to perform the duties re- 
quired of them by this chapter. They shall on view make 
a just appraisal in writing of the loss or damage, if any, to 
the applicant, sign duplicates thereof, and on demand de- 
liver one copy to the applicant and the other to the com- 
pany or its agent. If damages are assessed, the company 
shall pay the same with the costs of the appraisers. If 
the appraisers award that the applicant has suffered no 
damage, he shall pay the costs of the appraisers. 

Any person aggrieved by the assessment of his damages may have 
the matter determined by a jury as in case of highways. 

4. The mayor and aldermen and selectmen shall each 
receive for services performed under this chapter (the fore- 
going sections) two dollars.a day. 1 

1 Gen. Stats, ch. 64, §§ 4, 5, 6. 



460 TOWN AND PARISH OFFICER. 



CHAPTER LV. 

STORAGE, SALE, AND INSPECTION OF PETROLEUM OIL 
AND ITS PRODUCTS. 

1. The ma} r or and aldermen of every city, and the se- 
lectmen of every town of more than fifteen hundred in- 
habitants, and of every town of less than fifteen hundred 
inhabitants upon the written application of five or more 
citizens of such town therefor, shall appoint, annually, one 
or more suitable persons, not interested in the sale of crude 
petroleum, or in the sale or manufacture of petroleum, earth 
rock oil, or in any of their products, to be inspector or in- 
spectors thereof in said city or town, and fix their compen- 
sation, to be paid by persons requiring their services under 
the provisions of this statute, and who before entering upon 
the duties of their office shall be duly sworn. Any inspec- 
tor guilty of fraud, deceit, or culpable negligence in the 
performance of his duties, shall be punished by fine not 
exceeding one hundred dollars, or imprisonment in the 
county jail or house of correction not exceeding one month, 
or by both, in the discretion of the court. 

2. No person shall mix for sale, naphtha and illuminat- 
ing oils, or shall sell or offer for sale such mixture, or shall 
sell or offer for sale, except for purposes of re-manufacture, 
illuminating oils made from coal or petroleum, which will 
evaporate a gas under one hundred degrees Fahrenheit" or 
ignite at a temperature of less than one hundred and ten 
degrees Fahrenheit, to be ascertained by the application 
of Tagliabue's or some other approved instrument, and any 
person so doing shall for each offence be punished by fine 
or imprisonment, as provided in the first section hereof ; and 
shall also be liable therefor, to any person suffering damage 
from the explosion or ignition of such oil thus unlawfully 



INSPECTION, ETC. OF PETROLEUM OIL. 461 

sold or kept, or offered for sale ; and such oil thus unlaw- 
fully sold or kept, or offered for sale, and the casks or 
packages containing the same, shall be forfeited and sold, 
one half of the proceeds of such sale to go to the common- 
wealth and the other half to the informer. 

3. For all the purposes of this act, all illuminating oils 
made from coal or petroleum having an igniting point of 
less than one hundred and ten degrees Fahrenheit, to be 
determined in the manner provided in the second section 
of this act, shall be deemed to be mixed with naphtha and 
shall be branded unsafe for illuminating purposes. 

4. Any person who shall sell, or keep, or offer for sale, 
naphtha under any assumed name, shall for each offence, 
upon conviction thereof, be liable to the same penalties 
provided, and shall be subject to the same liabilities set 
forth in the first two sections of this act. 

5. Crude petroleum, or any of its products, may be 
stored, kept, manufactured, or refined in detached and 
properly ventilated buildings specially adapted for the pur- 
pose, and surrounded by an embankment constructed so as 
to effectually prevent the overflow of said petroleum or any 
of its products beyond the premises on which the same 
may be kept, manufactured, or refined : said buildings to 
be occupied in no part as a dwelling ; and if less than fifty 
feet from any other building must be separated therefrom 
by a stone or brick wall at least ten feet high and twelve 
inches thick ; and any person keeping such articles in any 
other kind of building, except as is hereinafter provided in 
the sixth section hereof, shall be punished by fine or im- 
prisonment, in the manner provided in the first two sections 
hereof. 

6. No person shall manufacture, refine, mix, store, or 
keep for sale, any oil or fluid composed wholly or in part 
of any of the products of petroleum, in any city or town, 
except as provided in the fifth section of this act, without 
a license first having been obtained from the mayor and 
aldermen of said city or the selectmen of said town, and 
in said license there shall be expressed the manner, and the 



462 TOWN AND PARISH OFFICER. 

portion of any locality or building in which said articles may 
be mixed, stored, or kept ; and whoever mixes, stores, or 
keeps said articles in any one locality, except as aforesaid, 
without having first obtained a license as herein required, 
or having obtained such license, mixes, stores, or keeps 
said articles in a different manner, or in any other portion 
of said locality or building than is expressed in said license, 
shall forfeit and pay a sum not exceeding five hundred dol- 
lars, to be recovered in any appropriate form of action, to 
be instituted in the name of the mayor of said city, or of 
the selectmen of said town ; and the license granted in ac- 
cordance with the provisions of this act shall continue to 
be in force from the time of granting the same until the 
first day of April next succeeding, unless sooner revoked ; 
and said license shall be revocable at all times by the 
authorities granting the same. 

7. Upon complaint made to the justice of any municipal 
or police court, or to a justice of the peace, by the mayor 
or by an alderman of any city, or by a selectman of any 
town, or by an inspector appointed under the provisions of 
this act, or any engineer of a fire department, fireward, 
chief of police, or city marshal, that he has probable cause 
to suspect, and does suspect, that any of the articles enu- 
merated in this act are offered for sale, or are deposited 
and kept within the limits of said city or town, contrary to 
the provisions of this act, said justice or court may issue a 
warrant directed to any such inspector, engineer, or fireward, 
or to any sheriff, deputy- sheriff, constable, or police officer, 
ordering him to enter any shop, warehouse, manufactory, 
or any other building specified in the warrant, to make dili- 
gent search for such article or articles suspected to be so 
pffered for sale, deposited, or kept, and to make return of 
his doings to said justice or court forthwith. 

8. None of the articles enumerated in this act shall be 
allowed to remain in any street, lane, alley, or travelled way, 
or upon any wharf, or in any yard, or on the grounds of 
any railroad corporation in any city for a longer time than 
twenty-four hours, and in any town for a longer time than 



INSPECTION, ETC. OF PETROLEUM OIL. 463 

forty-eight hours, without a special permit from the mayor 
and aldermen of said city, or the selectmen of said town, 
or from some person by them duly authorized ; and any 
and all persons so keeping such articles for a longer time, 
shall be punished by a fine of not more than fifty dollars 
for each and every such offence. 

9. The city council of any city, and the inhabitants of 
any town, may adopt such ordinances, by-laws, and regula- 
tions, not inconsistent with the provisions of this act, as 
they may deem reasonable in relation to the manufacture, 
mixing, storing, keeping, or selling within the corporate 
limits of said city or town, any of the articles herein enu- 
merated, and may affix penalties for breaches thereof not 
exceeding fifty dollars for each offence, reasonable notice 
of which shall be given to all concerned. 

10. No person shall sell, or keep for sale, or in storage, 
any crude or refined petroleum, naphtha, kerosene, earth 
rock, machinery or illuminating oil, in any city or town, 
without having the same inspected and approved by an 
authorized inspector. And any person violating the pro- 
visions of this section shall be fined and imprisoned in the 
manner provided in the section of this act (first of this 
chapter) in relation to inspectors. 1 

The following provisions are in force, except so far as they are 
inconsistent with the foregoing : — 

11. The ma} r or and aldermen of any city, or the select- 
men of any town, where oils are manufactured from coal or 
petroleum, and the mayor and aldermen of any city and 
the selectmen of any town where oils are sold but not 
made, and where five or more inhabitants petition for the 
same, shall appoint annually one or more suitable persons, 
not interested in the sale or manufacture of said oils, as 
inspectors thereof, and fix their compensation, to be paid 
by the parties requiring the services of said inspectors. 

12. Every inspector, before entering upon the Ili^cs of 
his office, shall be duly sworn, and when called upon by 
any manufacturer, refiner, vendor, purchaser, or by any 

1 Stats. 1869, ch. 152, §§ 1-9, 11. 



464 TOWN AND PARISH OFFICER. 

officer mentioned in the sixth section of this act (section 
thirteen below) , to test such oils, shall do so with all rea- 
sonable despatch, by applying the fire-test, as indicated 
and determined by G. Tagliabue's pyrometer, or some 
other instrument equally accurate. Any inspector guilty 
of fraud, deceit, or culpable negligence in inspecting such 
oils, shall be punished by fine not exceeding one hundred 
dollars, or imprisonment in the county jail or house of cor- 
rection not exceeding one month, or both, in the discre- 
tion of the court. 

13. The selectmen of the towns, and the mayors, 
aldermen, and police of the cities in which inspectors are 
appointed in conformity with the first section of this act, 
or any one of said officers, within their respective towns 
and cities, and the members of the state police, or any of 
them, shall cause all persons violating any of the pro- 
visions of this act to be prosecuted therefor. 1 

l Stats. 1867, ch. 286, §§.!, 2, 6. 



CONCERNING DOGS, SHEEP, ETC. 465 



CHAPTER LVI. 

CONCERNING DOGS. PROTECTION OF SHEEP, ETC. 

1. Every owner or keeper of a dog shall annually, on or 
before the thirtieth day of April, cause it to be registered, 
numbered, described, and licensed for one 3-ear from the 
first da} 7 of the ensuing May, in the office of the clerk of 
the city or town wherein said dog is kept, and shall cause 
it to wear around its neck a collar distinctly marked with 
its owner's name and its registered number, and shall pay 
for such license, for a male dog two dollars, and for a 
female dog five dollars. 

2. Any person becoming the owner or keeper of a dog 
not duly licensed, on or after the first day of May, shall 
cause said clog to be registered, numbered, described, and 
licensed until the first day of the ensuing May, in the 
manner and subject to the terms and duties prescribed in 
this act. 

Any person becoming the owner or keeper of a dog after the first 
day of May, not duly licensed, shall cause said dog to be registered, 
numbered, described, and licensed until the first day of the ensuing 
May, in the manner and subject to the terms and duties prescribed in 
section one of this chapter : provided, that no dog shall be required to 
be licensed until it is three months old. 

Any owner of a dog may, at any time, have it licensed until the 
first day of the ensuing May, upon paying the sum provided in section 
one of this chapter ; and such license shall exempt him from the pen- 
alty of section five of this chapter, unless such complaint is made prior 
to issuing the license. 1 

3. The clerks of cities or towns shall issue said licenses, 
and receive the money therefor, and pay the same into the 
treasuries of their respective counties, except in the county 
of Suffolk, on or before the first day of December of each 

1 Stats. 1872, ch. 330. 
30 



466 TOWN AND PARISH OFFICER. 

year, retaining to their own use twenty cents for each 
license, and shall return therewith a sworn statement of 
the amount of moneys thus received and paid over by them. 
They shall also keep a record of all licenses issued by them, 
with the names of the keepers or owners of dogs licensed, 
and the names, registered numbers, and descriptions of all 
such dogs. 

4. It shall be the duty of each county treasurer, and 
of each city or town treasurer, except in the county of 
Suffolk, to keep an accurate and separate account of all 
moneys received and expended by him under the provisions 
of this act. 

5. Any person keeping a dog contrary to the provisions 
of this act, shall forfeit fifteen dollars, to be recovered by 
complaint or indictment ; and of said fine or forfeiture, five 
dollars shall be paid to the complainant, and ten dollars 
shall be paid to the treasurer of the county in which the 
dog is kept ; except that in the county of Suffolk the ten 
dollars shall be paid to the treasurer of the city or town 
wherein said dog is kept. A license from the clerk of any 
city or town shall be valid in any part of the commonwealth 
and may be transferred with the dog licensed : provided, 
said license be recorded by the clerk of the city or town 
where such dog is kept. 

6. The assessors of the cities and towns shall annually 
take a list of all dogs owned or kept in their respective 
cities or towns, on the first day of May, with the owners' 
or keepers' names, and return the same to the city or town 
clerk, on or before the first day of July. Any owner or 
keeper of a dog who shall refuse to give just and true an- 
swers, or shall answer falsely to the assessors relative to 
the ownership thereof, shall be punished by a fine of not 
less than ten dollars, to be paid, except in the county of 
Suffolk, into the county treasury. 

7. Mayors of cities and the chairman of selectmen of 
towns shall annually, within ten da}^s from the first day of 
July, issue a warrant to one or more police officers, or con- 
stables, directing them to proceed forthwith either to kill 



CONCERNING DOGS, SHEEP, ETC. 467 

or cause to be killed all dogs within their respective cities 
or towns, not licensed and collared according to the pro- 
visions of this act, and to enter complaint against the 
owners or keepers thereof, and any person may, and every 
police officer and constable shall, kill or cause to be killed 
all such dogs whenever or wherever found. Such officers, 
other than those employed under regular pay, shall receive 
one dollar for each dog so destroyed, from the treasurers 
of their respective counties, except that in the county of 
Suffolk they shall receive it from the treasurers of their 
respective cities or towns. All bills for such services shall 
be approved by the mayor, or chairman of the selectmen, 
of the city or town in which said dogs are destroyed, and 
shall be paid from moneys received under the provisions 
of this act. 

8. Each police officer or constable to whom the warrant 
named in the preceding section shall have been issued shall 
return the same, on or before the first day of the October 
following, to the mayor or chairman of selectmen issuing 
the same, and shall state in said return the number of dogs 
killed, and the names of the owners or keepers thereof, and 
whether all unlicensed dogs in his city or town have been 
killed, and the names of persons against whom complaints 
have been made under the provisions of this act, and 
whether complaints have been entered against all the per- 
sons who have failed to comply with the provisions of this 
act. 

9. The mayors of cities and the chairman of selectmen 
of towns shall annually, within ten days from the first day 
of October, transmit a certificate, regularly subscribed and 
sworn to, of the fact of the issue of the warrant named in 
section seven, and whether the same has been duly exe- 
cuted and returned, agreeably to the provisions of this 
act, to the district attorneys of their respective districts, 
whose duty it shall be to prosecute all such city, town, or 
county officers as fail to comply with the provisions of 
this act. 

10. Whoever suffers loss by the worrying, maiming, or 



468 TOWN AND PARISH OFFICER. 

killing of his sheep, lambs, fowls, or other domestic ani- 
mals by dogs, may inform the mayor of the city or the 
chairman of the selectmen of the town wherein the damage 
was done, who shall proceed to the premises where the 
damage was clone and determine whether the same was in- 
flicted by dogs, and if so, appraise the amount thereof and 
return a certificate of said amount, except in the county of 
Suffolk, to the county commissioners, on or before the first 
da} r of December : provided, however, that if, in the opinion 
of said mayor or chairman of selectmen, the amount of 
said damage shall exceed the sum of twenty dollars, he 
shall appoint two disinterested persons, who, With the said 
mayor or chairman of selectmen, shall appraise the amount 
of such damage and return a certificate of the same, ex- 
cept in the county of Suffolk, to the county commissioners, 
on or before the first da^y of December. The count}^ com- 
missioners shall, during the month of December, examine 
all such bills, and, when any doubt exists, may summon 
the appraisers and all parties interested, and make such 
examination as they may think proper, and shall issue an 
order upon the treasurer of the county in which the damage 
was done, for all or any part thereof, as justice and equity 
may require. 

The treasurer shall annually, on the first Wednesday of 
Januaiy, pay all such orders in full, if the gross amount 
received by him and not previously paid out under the 
provisions of this act is sufficient therefor ; otherwise he 
shall divide such amount pro rata among such orders, in 
full discharge thereof. 

The appraisers shall receive from the county, or in the i 
county of Suffolk from the city or town treasurer, out of the 
moneys received under the provisions of this act, the sum 
of one dollar each for every examination made by them 
as prescribed in this section ; and the maj^or or the 
chairman of selectmen acting in the case, shall receive 
twenty cents per mile one way for his necessary travel in 
the case. 

The owner of sheep, lambs, or other domestic animals 



CONCERNING DOGS, SHEEP, ETC. 469 

worried, maimed, or killed by dogs, shall have his election 
whether to proceed under the provisions of this section or 
under the provisions of sections sixty-one, sixty-two, and 
sixty-three of chapter eighty-eight of the General Statutes ; 
but, having signified his election by proceeding in either 
mode, he shall not have the other remedy. In the absence 
or sickness of the mayor of the city, or chairman of the 
selectmen of the town, in which the damage is done, it 
shall be the duty of any one of the aldermen of said city, or 
of the selectmen of said town, who may be duly informed of 
damage supposed to have been done by dogs, to discharge 
forthwith the duties imposed by this section upon the mayor 
or chairman of selectmen. 

11. Any city, town, or county officer refusing or wilfully 
neglecting to perform the duties herein imposed upon him, 
shall be punished by a fine not exceeding one hundred 
dollars, to be paid, except in the county of Suffolk, into 
the county treasury. Any person aggrieved by such re- 
fusal or neglect on the part of any city, town, or county 
officer, may report the same forthwith to the district attor- 
ney of his district. 

12. The treasurer of any county may, and, when ordered 
by the county commissioners, shall, bring an action of tort 
against the owner or keeper of any dog concerned in doing 
damage to sheep, lambs, or other domestic animals in said 
county, which damage the county commissioners have 
ordered to be paid, to recover the full amount thereof to 
the use of said count} 7 . All fines and penalties provided 
in this act may be recovered on complaint or indictment 
before any court of competent jurisdiction in the county 
where the offence is committed. 

13. In the county of Suffolk, all moneys received for 
licenses or recovered as fines or penalties under the pro- 
visions of this act, which, if received or recovered in any 
other county, would be paid into the county treasury, shall 
be paid into the treasury of the city or town in which said 
licenses are issued or said fines or penalties recovered. 
All claims for damage done by dogs in said county shall 



470 TOWN AND PARISH OFFICER. 

be determined by appraisers as specified in section ten of 
this act, and, when approved by the board of aldermen or 
selectmen of the city or town where the damage was done, 
shall be paid in full on the first Wednesday of January of 
each 3^ear by the treasurer of said city or town, if the gross 
amount received by him and not previously paid out under 
the provisions of this act is sufficient therefor ; otherwise 
such amount shall be divided pro rata among such claim- 
ants in full discharge thereof. 

After such claims have been approved by the board of 
aldermen or selectmen, the treasurer of said city or town 
may, and, when ordered by the board of aldermen or se- 
lectmen, shall, bring an action of tort to recover, against 
the owner or keeper of any dog concerned in doing the 
damage, the full amount thereof. 

14. Any person owning or keeping a licensed dog, who 
may have received a notice, in accordance with section 
sixty-one of chapter eighty-eight of the General Statutes, 
that said dog is mischievous or dangerous, and who does 
not kill it or keep it thereafter from ever going at large, 
shall, on complaint or indictment, forfeit ten dollars, if it 
be proved that said dog be mischievous or dangerous. 

15. The warrants required to be issued by the seventh 
section of this act may be in the following form, viz. : — 

Commonwealth op Massachusetts. 
[Seal.] 

M ss. To , constable of the town (or city) of 

In the name of the Commonwealth of Massachusetts, you are 
hereby required to proceed forthwith to kill or cause to be killed all 
dogs within the said town not duly licensed and collared according to 
the provisions of the act of the year eighteen hundred and sixty-seven, 
entitled " An Act concerning Dogs, and for the protection of Sheep 
and other Domestic Animals," and you are further required to make 
and enter complaint against the owner or keeper of any such dog. 

Hereof fail not, and make due return of this warrant with your 
doings therein, stating the number of dogs killed and the names of the 
owners or keepers thereof, and whether all unlicensed dogs in said 
town (or city) have been killed, and the names of persons against 
whom complaints have been made under the provisions of said act, 
and whether complaints have been made and entered against all the 



CONCERNING DOGS, SHEEP, ETC. 471 

persons who have failed to comply with the provisions of said act, on 
or before the first day of October next. 

Given under my hand and seal at aforesaid, the day 

of in the year eighteen hundred and 

(Mayor of) or Chairman of the 
Selectmen of l 

16. Moneys received by the treasurer of any county, 
under the provisions of chapter one hundred and thirty of 
the acts of the year eighteen hundred and sixty-seven, and 
not expended in the payment of damages done by dogs in 
accordance with the provisions of said act, shall be paid 
back to the treasurers of the several cities and towns of 
said county, in the month of January of each year, in pro- 
portion to the amount paid by said city or town to said 
county treasurer ; and the moneys so refunded shall be 
expended for the support of public libraries or schools, in 
addition to the amount annually appropriated by said city 
or town for those purposes. In the county of Suffolk, 
moneys received by any treasurer of a city or town, under 
the provisions of said act, and not expended in accordance 
with the provisions of the same, shall be appropriated by 
the school committee of said city or town for the support 
of the public schools therein established. 2 

17. The mayor and aldermen of any city or the selectmen of any 
town may order that any dog or dogs within the limits of such city or 
town respectively, shall be muzzled or restrained from running at 
large during such time as shall be prescribed by such order. After 
passing such order and the publication of the same by posting a 
certified copy thereof in two or more public places in such city or 
town, or in case a daily newspaper shall be published in such city or 
town, by publication thereof once in such newspaper, said mayor and 
aldermen or selectmen may issue their warrant to one or more of the 
police officers or constables of such city or town, who shall, after 
twenty-four hours from the publication of such notice, kill any or all 
dogs found unmuzzled or running at large contrary to such order. 

Said police officers or constables shall be compensated for service 
under this act, as provided in section seven of this chapter, and any 
such city or town officer refusing or wilfully neglecting to perform the 
duties herein imposed upon him shall be punished as provided in sec- 
tion eleven of this chapter. 

1 Stats. 1867, ch. 130. 2 Stats. 1869, ch. 250, § 1. 



472 TOWN AND PARISH OFFICER. 

The mayor and aldermen of any city or the selectmen of any town 
may cause special service of any order passed by them respectively, 
as provided for in this section, to be made upon any person, requiring 
that any dog owned or kept by such person shall be muzzled or re- 
strained from running at large, by causing a certified copy of such 
order to be delivered to him. Any person, who after receiving such 
certified copy shall refuse or neglect, for the period of twelve hours 
after receiving such notice, to muzzle or restrain such dog as required 
by such order, shall pay a fine not exceeding twenty -five dollars ; said 
fine to be recovered as provided in section twelve. 

Every license issued to the owner of any dog in this common- 
wealth shall have printed thereon a description of the symptoms of 
the disease in dogs known as hydrophobia, said description to be sup- 
plied by the secretary of the state board of health to the clerks of the 
several cities and towns of the commonwealth upon application 
therefor. 1 

1 Stats. 1877, ch. 167. 



HERRING FISHERIES. 473 



CHAPTER LVIL 
HERRING FISHERIES. 

1. The mayor and aldermen of any city, and the select- 
men of any town, in this commonwealth, are hereby em- 
powered to authorize, in writing, any three or more persons, 
and their associates, to organize a corporation, with a capi- 
tal stock of not less than one thousand, and not more than 
five thousand dollars, for the purpose of opening outlets, 
canals, or ditches, for the introduction and propagation of 
herrings and ale wives, in the ponds, creeks, and rivers 
within the limits of such town or city, as aforesaid ; and 
said corporation, when organized, shall have all the powers 
and privileges, and be subject to all the duties, liabilities, 
and restrictions, set forth in the sixty-first chapter of the 
General Statutes, and in all general laws which now are or 
may hereafter be in force relating to corporations. 

2. Said corporations may purchase and hold real estate 
necessary for the purpose of opening outlets, canals, sluice- 
ways, or ditches, for the passage of herring and ale wives to 
and from said ponds and other waters. 

3. Towns and cities, in their corporate capacity, may 
open ditches, sluiceways, or canals, into any ponds within 
their limits, for the introduction and propagation of her- 
rings and ale wives, and for the creation of fishery for the 
same ; and the land for opening such ditches, sluiceways, 
or canals, within such town or city, may be taken under 
the provisions of the statutes which now regulate and limit 
the taking of land for highways and other purposes. 

4. Anj 7 fishery so created by any town or city shall be 
deemed to be the property of such town or city, and such 
town or city may make any proper regulations concerning 
the same, and may lease such fishery for a period not ex- 



474 TOWN AND PARISH OFFICER. 

ceeding five years, upon such terms as may be agreed upon 
between such town or city and the lessees of the same. 
And any town ma}* lease for a like period, and upon like 
terms, an}- fishery now owned by such town, or any public 
fishery which has heretofore been regulated and controlled 
by such town. 

5. No person without the permission of such town or 
city, or of the lessees of such fishery, in an}< fishery created 
by such town or city, or in any fishery created by any cor- 
poration, without the permission of said corporation, shall 
take, kill, or haul on shore any herrings or ale wives, in any 
fishery so created by any town, city, or corporation, for the 
introduction and propagation of herrings or ale wives. 

6. Whoever violates any of the provisions of the pre- 
ceding section, shall forfeit and pay a sum not less than 
five nor more than fifty dollars for each offence, to be re- 
covered by prosecution before any court competent to try 
the same. 

7. All prosecutions under the preceding section shall be 
instituted within thirty days from the time the offence was 
committed. 

8. Nothing contained in this act shall be held to impair 
the rights of any person under any law heretofore passed, 
or to deprive any person of any right under any contract 
now existing, or to authorize any town, city, or corporation 
to enter upon or build any canals or sluiceways into any 
pond which is the private property of any individual or 
corporation. * 

i Stats. 1866, ch. 187, §§ 1-8. 



SHELL FISH. 475 



CHAPTER LVIIL 
SHELL FISH. 

1. The mayor and aldermen or selectmen of any city or 
town in which there are oyster beds may give permits in 
writing to any person to take oysters from their beds at 
such times, in such quantities, and for such uses, as they 
shall express in their permits ; and every inhabitant of 
such city or town may, without such permit, take oysters 
from the beds therein for the use of his family, from the 
first day of September to the first day of June annually. 

2. Whoever takes any other shell fish from their beds, 
or destroys them, or wilfully obstructs their growth therein, 
in an} r city or town, except as is hereinafter provided, shall 
forfeit for every bushel of such other shell fish (including 
the shells) one dollar. But the mayor and aldermen or 
selectmen of each of said places may at all times give per- 
mits in writing to any person to take such other shell fish 
from their beds therein, at such times, in such quantities, 
and for such uses, as they shall express in their permit ; 
and ever}^ inhabitant of each of said places may, without 
such permit, take such other shell fish from the beds therein, 

* for the use of his family. 

3. Nothing contained in the two 1 preceding sections 
shall be construed to deprive native Indians of the privi- 
lege of digging shell fish for their own consumption, or to 
prevent any fisherman (an inhabitant of this state 2 ) from 
taking any quantity of shell fish which he may want for 
bait, not exceeding at any one time seven bushels includ- 
ing their shells. 

4. The mayor and aldermen or selectmen of any city or 
town may, by writing under their hands, grant a license 

i Stats. 1872, ch. 46. 2 stats. 1867, ch. 70. 



476 TOWN AND PARISH OFFICER. 

for a term not exceeding twenty years to any inhabitant 
thereof, to plant, grow, and dig oysters, at all times of the 
year, upon and in any flats and creeks therein, at anyplace 
where there is no natural oyster bed ; not, however, im- 
pairing the private rights of any person, nor materially 
obstructing the navigable waters of any creek or bay. 

5. Such license shall describe by metes and bounds the 
flats and creeks so appropriated, and shall be recorded by 
the city or town clerk before it shall have any force ; and 
the person licensed shall pay to the mayor and aldermen 
or selectmen, for their use, two dollars, and to the clerk 
fifty cents. 1 

l Gen. Stats, ch. 83, §§ 12-17. 






POWER OF TOWNS TO PURCHASE WATER RIGHTS. 477 



CHAPTER LIX. 

POWER OF TOWNS TO PURCHASE WATER RIGHTS. 

1. Any city or town in this commonwealth may, for the 
purpose of supplying pure water to its inhabitants, purchase 
of any aqueduct company, or of any municipal or other 
corporation, now existing, or that may hereafter be organ- 
ized under any special charter or general law of this com- 
monwealth, the right to take water from any of its sources 
of supply or from pipes leading therefrom ; or may pur- 
chase its whole water-rights, estates, properties, franchises, 
and privileges, and by such latter purchase become entitled 
to all the rights and privileges and subject to all the duties 
and liabilities appertaining and belonging to said company 
or corporation (or may make any contract for a supply of 
water with any such company or corporation *) : provided, 
however, that no city shall exercise such authority to pur- 
chase (or contract *) without the consent of two-thirds of 
each branch of its city council, sanctioned and ratified by a 
majority of the voters of said city, present and voting 
thereon at a legal meeting duly called in their several ward- 
rooms for that purpose, and at which the check-list shall 
be used ; and provided, further, that no town shall exercise 
such authority to purchase (or contract *) without the con- 
sent of two-thirds of its selectmen, sanctioned and ratified 
by a majority of the voters of said town, present and vot- 
ing thereon at a legal meeting duly called for that purpose, 
and at which the check-list shall be used. 

2. Any city or town which shall make such purchase, 
may issue bonds in payment thereof, at a rate of interest 
not exceeding seven per cent, payable semiannually, and 

1 Stats. 1873, ch. 255. 



478 TOWN AND PARISH OFFICER. 

redeemable at some time not exceeding twenty years from 
the date thereof. 

3. Any city or town which shall make such purchase 
and issue bonds as aforesaid, may, for the purpose of pur- 
chasing materials, laying pipes, and doing other work 
necessary in order to supply its inhabitants with pure 
water for domestic uses, or for extinguishment of fires, 
issue additional bonds similar to those heretofore specified 
(and any city or town which may make any such contract 
as aforesaid may, for the purpose named in this section, 
issue similar bonds *) : provided, the whole amount issued 
under this and the preceding section does not exceed ten 
per cent of its valuation. 

4. In case the water should be brought through another 
city or town, pipes may be laid through such streets and 
highways of said city or town as shall be designated by the 
mayor and aldermen, or selectmen thereof; and the party 
exercising the privilege of laying pipes under such permis- 
sion, shall be liable in an action of contract or tort, for all 
damages to any party damnified thereby. 

5. All purchase-money received by any city or town 
under or by authority of the provisions of this act, shall 
be applied to the payment of its water-debt ; or, if no such 
debt exists, then into the general treasury of such city or 
town. 2 

6. The city council of any city and the inhabitants of any 
town, in which water is supplied or distributed at the public 
expense, may prescribe rules and regulations for the in- 
spection, materials, construction, alteration, or use of all 
water-pipes and of water-fixtures of every kind, through 
which water so supplied or distributed is used by any per- 
son or corporation within said city or town, and may im- 
pose penalties not exceeding twent}^ dollars for each and 
every violation of any provision of any ordinance or by-law 
passed by authority of this act, to be recovered before any 
municipal, district, or police court, or any trial justice 
having jurisdiction in the place where the penalty is in- 

1 Stats. 1873, ch. 255. 2 Stats. 1870, ch. 93. 



POWER OF TOWNS TO PURCHASE WATER RIGHTS. 479 

curred ; and may prohibit the use of water by any person 
or corporation neglecting or refusing to comply with any 
provision of any ordinance or by-law so passed : and any 
ordinance or by-law so passed may be made operative 
upon and within the whole territory of such city or town, 
or upon and within any prescribed or defined district or 
districts of said territory. 

7. The powers conferred by this act upon the city coun- 
cil of any city or the inhabitants of any town, except the 
power to impose penalties, may be exercised by them 
through any water board or other board or commission 
which they may designate ; but the pQwers so delegated to 
any such board or commission may at any time be revoked 
by the authority delegating them. 1 

Any town may regulate by suitable ordinances or by-laws, to be 
made in the manner now provided by law, with penalties not exceed- 
ing fifty dollars for each violation thereof, the use of reservoirs and 
land and drive ways appurtenant thereto, forming a part of its system 
of water supply within its limits. 2 

i Stats. 1875, ch. 105. 2 Stats. 1876, ch. 139. 



480 TOWN AND PARISH OFFICER. 



CHAPTER LX. 

DUTIES OF TOWN OFFICERS UNDER MILITIA LAW. 

1. Every able-bodied male citizen, resident within this state, of the 
age of eighteen years, and under the age of forty-five years, excepting 
persons exempted by sections two, three, and five, and idiots, lunatics, 
common drunkards, vagabonds, paupers, and persons convicted of any 
infamous crime, shall be enrolled in the militia. Persons so convicted 
after enrolment shall forthwith be disenrolled ; and, in all cases of 
doubt respecting the age of a person enrolled, the burden of proof 
shall be upon him. 

2. In addition to the persons exempted from enrolment in the militia 
by the laws of the United States, the persons hereinafter mentioned 
shall also be absolutely exempted from enrolment, viz. : — 

Justices and clerks of courts of record ; 

Registers of probate and insolvency ; 

Registers of deeds, and sheriffs ; 

Officers who have held or may hold commissions in the regular or 
volunteer army or navy of the United States ; 

Officers who have held, for a period of five years, commissions in 
the militia of this or any other state of the United States, or who 
have been superseded and discharged, or who held commissions in any 
organization of the Massachusetts volunteer militia at the time of its 
disbandment ; 

Ministers of the gospel ; 

Practising physicians ; 

Superintendents, officers, and assistants, employed in or about either 
of the state hospitals, state almshouses, state prisons, jails, or houses 
of correction ; 

Keepers of light-houses ; 

Conductors and engine-drivers of railroad trains ; 

Seamen actually employed on board of any vessel, or who have 
been so employed within three months next preceding the time of 
enrolment. 

3. Every person of either of the religious denominations of Qua- 
kers or Shakers, who, on or before the first Tuesday in May, annually, 
produces to the assessors of the city or town in which he resides a 
certificate signed by two or more of the elders or overseers (as the 
case may be) and countersigned by the clerk of the society with which 



MILITIA LAWS, ETC. 481 

he meets for public religious worship, shall be exempted from enrol- 
ment. The certificate shall be in form as follows : — 

We, the subscribers, of the society of the people called 
in the of , in the county of , do hereby certify 

that is a member of our society, and that he frequently 

and usually attends religious worship with said society ; and we 
believe he is conscientiously scrupulous of bearing arms. 

A. B., ) Elders or Overseers, 
E. F., Clerk. C. D., ) (as the case may be.) 

4. Engine men or members of the fire department in a city or town 
shall be exempted from military duty by forthwith filing with the 
assessors of the city or town in which they reside a certificate that 
they are engine men or members of the fire department as aforesaid, 
signed by the mayor and aldermen or fire commissioners of such city, 
or the selectmen of such town ; but when a member of a volunteer 
company is, after his enlistment, appointed an engine man or member 
of the fire department, it shall not vacate his enlistment. 

5. The enrolled militia shall be subject to no active duty, except 
in case of war, invasion, the prevention of invasion, the suppression 
of riots, and to aid civil officers in the execution of the laws of the 
commonwealth. 

6. Assessors shall annually, in May or June, make a list of persons 
living within their respective limits liable to enrolment, and place a 
certified copy thereof in the hand of the clerks of their respective 
cities and towns, who shall place it on file with the records of such 
city or town, and annually, in May, June, or July, transmit returns 
of the militia thus enrolled to the adjutant-general. 

7. Keepers of taverns or boarding houses, and masters and mis- 
tresses of dwelling houses, shall, upon application of the assessors 
within whose bounds their houses are situated, or of persons acting 
under them, give information of the names of persons residing in their 
houses liable to enrolment or to do military duty; and every such 
person shall, upon like application, give his name and age ; and if 
such keeper, master, mistress, or person refuses to give such informa- 
tion, or gives false information, such keeper, master, or mistress shall 
forfeit and pay twenty dollars, and such person shall forfeit and pay 
twelve dollars, to be recovered on complaint of either of the assessors. 

8. The selectmen shall provide for each regiment, battalion, corps 
of cadets, or portion of the volunteer militia, within the limits of their 
respective towns, a suitable armory for the purpose of drill, and for 
the safe keeping of the arms, equipments, uniforms, and other military 
property furnished to such portion of the volunteer militia by the 
state ; and shall also provide suitable grounds or places for the parade, 
drill, and target-practice of the militia belonging to their respective 
towns. They shall also provide for the headquarters located within 

31 



482 TOWN AND PARISH OFFICER. 

their limits of each brigade, regiment, separate battalion, or corps of 
cadets, a suitable room for the keeping of books, the transaction of 
business, and the instruction of officers. Necessary fuel and lights, 
or a reasonable allowance therefor, shall be furnished by towns for 
each armory or headquarters located within their limits. 

9. Where two or more companies of the same battalion are located 
within the limits of a town, the selectmen thereof shall, if practicable, 
provide such companies with a drill-hall, to be used by them in com- 
mon, of capacity sufficient for battalion drill, together with a smaller 
room in the same building, for each of said companies, suitable for 
company meetings, and for the safe keeping of military property, as 
provided in the preceding section. 

The headquarters of each regiment, battalion, and corps of cadets, 
shall be established with said commands, or portions thereof, as far as 
practicable. 

10. Towns in which regiments, battalions, corps of cadets, or com- 
panies, or the headquarters of brigades, regiments, battalions, or 
corps of cadets are located, are hereby authorized to raise money, by 
taxation or otherwise, for the purpose of erecting suitable buildings 
for the armories or headquarters of such organizations. 

11. When a company is formed from different places, the location 
of its armory shall be determined by a majority of its members, sub- 
ject to the approval of the adjutant-general. 

12. Armories provided for the militia shall not be used for any 
purpose whatever other than the legitimate uses of the commands 
occupying them ; and no commander of any regiment, battalion, corps 
of cadets, or company shall allow the armory or armories of his com- 
mand to be let for other than a proper military purpose, unless by 
approval of the commander-in-chief. And they shall be open to rea- 
sonable inspection by the selectmen. 

13. The selectmen of towns shall annually, in October or Novem- 
ber, transmit to the adjutant-general a certificate, verified by oath or 
affirmation of at least two of their board, showing the name of each 
militia organization or headquarters furnished with an armory, the 
amount paid for the rent thereof, and that the rent charged is fair 
and reasonable according to the value of real estate in their place. 

14. The adjutant-general shall annually examine all certificates so 
returned to his office, institute any inquiries he deems expedient rel- 
ative thereto, and, under the direction of the commander-in-chief, 
allow them, in whole or in part, to an amount not exceeding six 
hundred dollars for a company of artillery or cavalry, four hundred 
dollars for a company of infantry, and not exceeding two hundred 
dollars for each brigade, regimental, or separate battalion headquar- 
ters. The amount to be allowed to a corps of cadets shall be deter- 
mined by the commander-in-chief, not exceeding the allowance which 
would be made in the aggregate to a battalion of four companies and 
the headquarters thereof. The adjutant-general shall, within ten days 



MILITIA LAWS, ETC. 483 

after such examination, file in the office of the auditor his certificate, 
stating the sums allowed, the name of the command for whose use 
each sum is allowed, and the place to which it belongs ; and shall 
thereupon notify the selectmen of the sum allowed to their place ; 
which sum shall be paid, upon the warrant of the governor to such 
selectmen. 

15. When there is in any town a tumult, riot, mob, or a body of men 
acting together by force, with attempt to commit a felony, or to offer 
violence to persons or property, or by force and violence to break and 
resist the laws of the commonwealth, or when such tumult, riot, or 
mob is threatened, and the fact is made to appear to the commander- 
in-chief, or the sheriff of the county, or the selectmen of the town, the 
commander-in-chief may issue his order, or such sheriff, or selectmen 
may issue a precept, directed to any commander of a brigade, regi- 
ment, battalion, corps of cadets, or company, directing him to order 
his command, or a part thereof, to appear at a time and place therein 
specified, to aid the civil authority in suppressing such violence, and 
supporting the laws ; which precept shall be in substance as follows : — 



, ss. 

Commonwealth of Massachusetts, 
l. s. 
To (insert the officer's title) A B, commanding (insert his command). 

Whereas it has been made to appear to (the sheriff, mayor, or the 
selectmen, as the case may be) of the (county, city, or town) of , that 

(here state one or more of the causes above mentioned) in our of 

, and that military force is necessary to aid the civil authority in 
suppressing the same: Now, therefore, we command you that you 
cause (your command, or such part thereof as may be desired), armed and 
equipped with ammunition, and with proper officers, to parade at 
, on , then and there to obey such orders as may be 

given, according to law. Hereof fail not at your peril, and have you 
there this precept, with your doings returned thereon. 

This precept shall be signed and properly attested as the act of 
such sheriff, or selectmen, and shall be under seal, and may be varied 
to suit the circumstances of the case; and a copy of the same shall 
be immediately forwarded to the commander-in-chief. 

16. The selectmen of a town, to which men so ordered out, de- 
tached, or drafted belong, when required in writing by a commander 
of a regiment or detachment, shall provide carriages to attend them 
with further supplies of provisions and to carry necessary baggage, 
and provide necessary camp equipage and utensils, until notified by 
the commanding officer to desist; and shall present their accounts 
for the same to the quartermaster-general. For any neglect by such 
selectmen, under this section, such town shall forfeit, to the use of 



484 TOWN AND PARISH OFFICER. 

the commonwealth, not less than twenty nor more than five hundred 
dollars. 

17. Whenever it shall be necessary to call out any portion of the 
enrolled militia for active duty, the commander-in-chief shall direct 
his order to the selectmen of towns, who, upon receipt of the same, 
shall forthwith, by written or oral notice to each individual, or by 
proclamation, appoint a time and place for the assembling of the en- 
rolled militia in their town, and shall then and there proceed to draft 
as many thereof, or accept as many volunteers as is required by the 
order of the commander-in-chief, and shall forthwith forward to the 
commander-in-chief a list of the persons so drafted or accepted as 
volunteers. 

18. Every member of the enrolled militia ordered out, or who vol- 
unteers or is detached or drafted, who does not appear at the time 
and place designated by the selectmen, or who has not some able- 
bodied and proper substitute at such time and place, or does not pay 
to such selectmen, for the use of the commonwealth, the sum of 
seventy-five dollars within twenty-four hours from such time, or who 
does not produce a sworn certificate, from a physician in good stand- 
ing, of physical disability to so appear, shall be taken to be a deserter, 
and dealt with accordingly. 1 

i Stats. 1878, ch. 265. 



DUTIES OF SELECTMEN TO RETURN STATISTICS. 485 



CHAPTER LXI. 

DUTIES OF SELECTMEN TO RETURN INDUSTRIAL STA- 
TISTICS; AS TO RACE GROUNDS. PENALTIES. 

1. The aldermen of each city and the selectmen of each 
town in the commonwealth shall, between the first day of 
May and the first day of September, in the year eighteen 
hundred and sixty-five, and also between the first day 
of May and the first day of September, in every tenth 
year thereafter, make to the secretary of the common- 
wealth the returns hereinafter specified ; such returns, so 
far as they relate to the amount, description, and value of 
stock and fuel consumed, and of articles manufactured ; to 
the produce of land, quarries, kilns, coal-beds, ore-beds, 
and fisheries ; to wool, wood, bark, charcoal, farm products, 
live stock, ice, and imports ; to vessels and boats built, and 
buildings erected, shall embrace the year ending on the first 
day of May in said years respectively ; and in all other par- 
ticulars shall state the facts as they shall exist in the re- 
spective cities and towns on said first day of May. 

As the blanks furnished by the secretary will probably contain all 
the particular items to be returned, it is thought unnecessary to re- 
print them here. 

2. The secretary of the commonwealth shall cause to be 
printed blank tables, conveniently arranged for the return 
of the facts aforesaid, with blank columns for the return 
of such facts as are not enumerated in this act, and shall 
furnish three copies of the same, together with one copy 
of this act, to the aldermen of each city and the selectmen 
of each town ; the whole to be accompanied with such 
printed instructions as he shall deem proper. 

3. The secretary of the commonwealth, after he shall 
have received the returns aforesaid, from the aldermen of 
the several cities and the selectmen of the several towns, 



486 TOWN AND PARISH OFFICER. 

shall cause to be prepared and printed a true abstract of 
the same, with each column of figures of such abstract 
added up, for the use of the next ensuing legislature. 

4. The aldermen of any city and the selectmen of any 
town may authorize either of their number, or some other 
suitable person, or persons, to collect the information re- 
quired by this act. 

5. If any alderman, selectman, or other person, author- 
ized under the provisions of section four of this act, shall 
wilfully neglect to make the returns as required in the first 
section, he shall forfeit and pay a sum not exceeding two 
hundred dollars ; and if any person shall refuse to give the 
information required in said first section, he shall forfeit 
and pay a sum not exceeding one hundred dollars. 

6. All fines and forfeitures arising under this act may 
be recovered in any court of this commonwealth having 
competent jurisdiction, in an action of debt, one moiety to 
the use of him or them who shall sue for the same, and the 
other moiet} T to the use of the commonwealth ; or they 
may be recovered by information filed by the attorney- 
general, in any court having competent jurisdiction, in 
which case they shall accrue wholly to the common- 
wealth. 1 

7. No land within any town or city shall be laid out or used as a 
race ground or trotting park, without the previous consent of and 
location by the selectmen or mayor and aldermen; who may regulate 
and alter the terms and conditions under which the same shall be laid 
out, used, or continued in use ; and discontinue the same when in their 
judgment the public good so requires ; and no land shall be used for 
racing, &c. of horses for money. 2 

8. If a town, city, or county officer embezzles or fraudu- 
lently converts to his own use, or fraudulently takes or 
secretes with intent so to do, any effects or propertj^ be- 
longing to or in possession of said town, city, or county, 
he shall be deemed guilty of larceny, and be punished by 
imprisonment in the state prison not exceeding ten years, 
or by fine not exceeding one thousand dollars, and impris- 
onment in the jail not exceeding two years. 3 

i Stats. 1865, eh. 146. 2 Gen. Stats, eh. 167, § 10; Stats. 1864, ch. 63. 
3 Gen. Stats, ch. 161, § 37. 



PARISHES AND RELIGIOUS SOCIETIES. 487 



CHAPTER LXn. 

PARISHES AND RELIGIOUS SOCIETIES. 

1. Every religious society established or organized by 
virtue of any statute shall be and continue a body corpo- 
rate with the powers given to corporations by chapter 
sixt3 T -eight, x and the powers, privileges, liabilities, and 
duties set forth in this chapter ; but this chapter shall not 
enlarge nor diminish the powers of taxation enjoj^ed by 
any religious society by virtue of a special law or act of 
incorporation, nor impair existing rights of property of 
any territorial parish. 

2. Religious societies, whether corporate or unincorpo- 
rate, shall continue to have and enjoy their existing rights, 
privileges, and immunities, except so far as the same may 
be limited or modified by the provisions of this chapter. 

3. The respective churches connected and associated in 
public worship with such religious societies shall continue 
to have, exercise, and enjoy all their accustomed privi- 
leges and liberties respecting divine worship, church order, 
and discipline, and shall be encouraged in the peaceable 
and regular enjoyment and practice thereof. 2 

4. Where a parish or religious society is, by its constitution, limited 
to any place, the church of such society is equally limited, being indis- 
solubly connected with such society ; so that an adhering minority of 
the church, and not a seceding majority, constitutes the church of 
such parish or religious society, to all civil purposes. 3 

5. A religious society that is not incorporated, or which 
may be unable to assemble in the usual manner, if it con- 

1 Chapter sixty-eight of the Gen- 3 Stebbins v. Jennings, 10 Pick, 
eral Statutes. 172; Baker v. Fales, 16 Mass. 488. 

2 Gen. Stats, ch. 30, §§ 1-3. 



488 TOWN AND PARISH OFFICER. 

tains ten or more qualified voters, may organize and be- 
come a corporation with the powers, privileges, duties, 
liabilities, and requirements of such societies, and may 
hold so much estate, real or personal, as may be necessary 
for the objects of such organization, and no more ; but all 
the powers derived from such organization may be revoked 
by the legislature. 

6. Any justice of the peace for the county in which such 
society may be, upon application in writing by five or more 
of the qualified voters thereof, may issue his warrant di- 
rected to some one of the applicants, stating the objects, 
and requiring him to warn the qualified voters of the society 
to meet at a time and place appointed in the warrant ; and 
the same may be served by posting an attested copy thereof 
on the principal outer door of the meeting-house, or leaving 
such copy with or at the last and usual place of abode of 
such voters, seven days at least before such meeting ; and, 
upon due return thereof, the same justice or any other jus- 
tice of the peace for the county may preside at the meeting 
for the choice and qualification of a clerk, who shall enter 
at large upon the records of the society the proceedings 
had in the organization thereof ; and the society may there- 
upon proceed to choose a moderator and do such other 
things as parishes are by law authorized to do at their 
annual meetings : provided the subject-matter thereof is 
inserted in the warrant. 

7. Persons belonging to a religious society shall be held 
to be members until they file with the clerk a written notice 
declaring the dissolution of their membership, and they 
shall not be liable for any grant or contract thereafter made 
or entered into by such society. No person shall be made 
a member of such society without his consent in writing. 1 

8. Any parish or religious society may admit to mem- 
bership women, who shall have all the rights and privileges 
of men. 

9. Any territorial parish may admit to membership per- 
sons not residents of its territory. 2 

i Gen. Stats, ch. 30, §§ 4-6. 2 Stats. 1869, ch. 346. 



PARISHES AND RELIGIOUS SOCIETIES. 489 

10. Every religious society may make by-laws not re- 
pugnant to the laws of the commonwealth, and therein pre- 
scribe the manner in which persons may become members. 

11. No person shall have a right to vote in the affairs 
of such society unless he is a member thereof. 

12. The qualified voters of every parish and incorpo- 
rated religious society, and of every society organized 
according to the provisions of this chapter, shall hold an 
annual meeting in the month of March or April, or at such 
other time as they may prescribe by their by-laws, and if 
the by-laws do not otherwise determine at a time and place 
appointed by their assessors or standing committee ; and 
at such meeting shall choose a moderator, clerk, two or 
more assessors, a treasurer and collector, and such other 
officers as the}' think necessary, all of whom, except the 
moderator, shall continue in office till the next annual 
meeting and till others are chosen and qualified in their 
stead. 

13. Moderators of meetings held for the choice of officers 
shall be elected by written ballots. Clerks, assessors, treas- 
urers, and collectors shall be elected by written ballot and 
shall be sworn. Other officers may be elected in such mode 
as the society may determine. 

14. The prudential affairs of such societies shall be 
managed by their assessors or a standing committee spe- 
cially appointed for that purpose ; and the assessors or 
committee shall have like authority for calling meetings as 
selectmen have for calling town meetings. 

15. If there are no assessors or committee, -or if they 
unreasonably refuse to call a meeting, any justice of the 
peace for the county, upon the application of not less than 
five qualified voters, may call one in the manner provided 
in section five (section six above). 

16. The assessors or committee shall insert in the next 
warrant they issue for calling a meeting any matter which 
not less than five qualified voters of the society in writing 
request. Nothing acted upon shall have any legal opera- 
tion, unless the subject-matter thereof was inserted in the 
warrant. 



490 TOWN AND PARISH OFFICER. 

17. Meetings shall be warned in the manner provided by 
any by-law or vote of the society, and when no provision is 
made, in snch manner as the assessors or standing com- 
mittee in their warrant for such meeting direct. 

18. The clerk, or if there is no clerk or he is absent, the 
assessors or the standing committee, or any one of them, 
shall preside in the choice of a moderator ; and a clerk may 
then be chosen, either pro tempore or to fill the vacancy, as 
the case may require. The moderator may administer the 
oath of office to the clerk ; and the clerk to the assessors 
and collector ; or said oaths may be administered by a jus- 
tice of the peace ; and they shall be substantially the same 
as are required to be taken by the clerk, assessors, and 
collectors, of towns. 1 

The clerk may administer the oath of office to the treasurer as well 
as to assessors and collector. 2 

19. The moderator shall have the same power as the 
moderator of a town meeting ; and persons guilty of dis- 
orderly behavior at a meeting shall be subject to the pen- 
alties and punishments provided for like offences in town 
meetings. 

20. If the person chosen collector is present and ac- 
cepts the office, he shall forthwith be sworn. If not pres- 
ent, he shall be summoned to take the oath by a constable 
or any person whom the clerk or assessors may appoint for 
the purpose. Upon the refusal or neglect of a person pres- 
ent to accept the office at the time, and upon the neglect 
of a person so summoned, for the space of seven days, to 
appear and take the oath, the society shall proceed to a 
new choice ; and so from time to time until some person 
accepts and is sworn. 

21. Vacancies in any of the annual offices, occurring 
after the annual meeting, may be filled at any other legal 
meeting. 

22. The rector or one of the wardens of religious socie- 
ties belonging to the body of Christians known as the Prot- 
estant Episcopal Church, organized under the laws of the 

i Gen. Stats, ch. 30, §§ 7-15. 2 Stats. 1865, ch. 100. 



PARISHES AND RELIGIOUS SOCIETIES. 491 

commonwealth, may, unless it is otherwise provided in 
some b} T -law, preside at their meetings with all the powers 
of a moderator ; and the wardens or wardens and vestry 
may exercise all the powers of a standing committee in 
accordance with the usage and discipline of said church. 
Unless they assess or collect a tax on the polls, estates, or 
pews, of the members thereof, such societies need not 
choose a collector or assessors ; and they may in their In- 
laws provide, that the duties of assessors shall be per- 
formed by the wardens. But the officers upon whom the 
duties of standing committee or assessors may devolve 
shall in all cases be elected by ballot. 

23. The qualified voters of each religious society, at the 
annual meeting or at any other meeting regularly notified 
seven days at least before the holding thereof, may grant 
and vote such sums of money as the}' judge necessary for 
the settlement, maintenance, and support of ministers or 
public teachers of religion ; for the building or repairing 
of houses of public worship ; for sacred music ; for the 
purchase and preservation of burial grounds ; and for all 
other necessaiy parish charges ; which sums shall be as- 
sessed on the polls and estates of all the members of the 
societ} T , in the same manner and proportion as town taxes 
are by law assessed. 

24. The assessors shall assess the taxes upon the prop- 
erty (not exempted bj T law from taxation) of all the mem- 
bers of the society, including their real estate within the 
state, in whatever part thereof it maybe situated, and their 
personal estate wherever the same may be ; and no citizen 
shall be liable to pay a tax for the support of public wor- 
ship or other parish charges, to a society other than that 
of which he is a member. 1 

Shares in the capital stock of any corporation are not exempted 
from taxation for parish purposes. 2 

25. No corporation shall be taxed for any parochial 
purpose. Nor shall any person be taxed in a parish or 

i Gen. Stats, ch. 30, §§ 16-21. 2 stats. 1866, ch. 196. 



492 TOWN AND PARISH OFFICER. 

religious society for property held by liim as guardian or 
trustee. 

26. Ever}^ society may appoint its treasurer collector of 
taxes ; who shall have like powers and proceed in like 
manner, in enforcing the collection of such taxes after the 
expiration of the time fixed by the society for the payment 
thereof, as provided in chapter twelve for the collection of 
taxes by collectors of towns ; and any society may author- 
ize its treasurer and collector to make an abatement of 
such sum as it may agree upon at its annual meeting, to 
those who make voluntary payment of their taxes within 
such periods as may be determined by the society. 

The treasurer of a parish may employ an attorney to bring suit to 
collect a debt due to it, without express authority from the inhabi- 
tants or committee of the parish. 1 

27. Unincorporated religious societies shall have like 
power to manage, use, and employ, any donation, gift, or 
grant, made to them, according to its terms and condi- 
tions, as incorporated societies have, by law ; may elect 
suitable trustees, agents, or officers therefor; and sue for 
any right which may vest in them in consequence of such 
donation, gift, or grant ; for which purposes they shall be 
corporations. 

28. Incorporated and unincorporated religious societies 
may appoint trustees, not exceeding five in number, to hold 
and manage trust funds for their benefit, who shall hold 
their offices (three 2 ) years and until others are appointed in 
their stead. (In case of a vacancy, by death or otherwise, 
the parish may fill such vacancy at its next annual meet- 
ing, or at a special meeting called for that purpose. 3 ) Such 
societies at or before the time of the first appointment of 
the trustees may establish rules and regulations for their 
government, which shall be considered as of the nature of 
a contract, and not subject to alteration or amendment 
except by all the trustees in office at the time and by a 
two-thirds vote of the society interested therein. 

1 Wallace v. First Parish of Town- 2 Stats. 1869, ch. 248. 

send, 109 Mass. 263. « Stats. 1870, ch. 68. 



PARISHES AND RELIGIOUS SOCIETIES. 493 

29. The terms " religious society" and " society" in the 
preceding sections shall include parishes. 

30. Persons owning or proposing to build a house of 
public worship may organize themselves in the same man- 
ner as religious societies are authorized to do by the pro- 
visions of this chapter ; and shall thereupon become a 
corporation with the powers, privileges, duties, restrictions, 
and liabilities, set forth in chapter sixty-eight, and in the 
following sections ; but all the powers derived from such 
organization may be revoked by the legislature. 

31. Every such corporation may hold so much real and 
personal estate, in addition to its meeting-house, as may 
be necessary for its objects (and no more *) ; and the an- 
nual income thereof shall be applied to parochial purposes. 

32. The clerk of every such corporation shall, within 
ten days of such meeting, leave with the clerk of the 
town or city in which such house of worship is situated, 
or is about to be built, a true copy of the record of the 
proceedings. If he fails so to do, the organization shall 
be void. The copy shall be recorded by the clerk receiv- 
ing it in a book kept for the purpose, for which he shall 
receive the fee of the register of deeds for like services. 

33. When the proprietors deem it expedient to alter, 
enlarge, repair, rebuild, or remove, their house, or build a 
new one, they may, at a legal meeting called for that pur- 
pose, raise such sums of money as they may judge neces- 
sary for the purpose, and to purchase land necessary 
therefor. 

Any religious society established under a special act of incorpora- 
tion, shall have the powers set forth in this section, any thing con- 
tained in the act of incorporation, or any act in amendment thereof, 
or in section one of this chapter, to the contrary notwithstanding. 2 

34. A meeting of the proprietors for any of the purposes 
aforesaid, may be called in the manner prescribed in the 
by-laws or votes of the corporation, or by a warrant granted 
by a justice of the peace on application in writing by any 
five of said proprietors, which warrant shall be directed to 

i Stats. 1870, ck. 63. 2 stats. 1876, ch. 84 



494 TOWN AND PARISH OFFICER. 

one of the applicants ; or such meeting may be called by a 
notification by the clerk of the proprietors, who shall warn 
a meeting on a like application to him ; and in either case 
the meeting may be warned by notification served as pro- 
vided in section five (section six above) . 

35. Money raised may be assessed on the pews in such 
house, and the assessment may be committed to the treas- 
urer of the proprietors, who shall forthwith give notice by 
posting up an advertisement at the principal outer door of 
the house, stating the completion of such assessment and 
the day of delivery thereof to him ; and if any part of said 
taxes remain unpaid for three months afterwards, the treas- 
urer shall collect the same forthwith b} r sales at public auc- 
tion of the pews whereon the same remains unpaid, in the 
manner provided in the following sections. 1 

The treasurer is the proper party to bring a suit for the purchase- 
money of a pew so sold. 2 

36. The treasurer shall post up a notification of the 
intended sale of a pew for taxes at the principal outer 
door of such house, at least three weeks before the time 
of sale, setting forth the number of the pew, if any, the 
name of the owner or occupant, if known, and the amount 
of the tax due thereon ; and if any part of said tax re- 
mains unpaid at the time, the treasurer shall sell the pew 
at public auction to the highest bidder, and shall execute 
and deliver to the purchaser a sufficient deed of convey- 
ance. The money arising from the sale, beyond the taxes 
and incidental reasonable charges, shall be paid by the 
treasurer to the former owner of the pew, or to his 
assigns. 

37. An affidavit annexed to an original notification or to 
a copy thereof, made before a justice of the peace and re- 
corded on the proprietor's records within six months next 
after such sale, shall be allowed as one mode of proof of 
the posting up of the notifications hereinbefore required. 

38. Such proprietors, for the purpose of building a new 

i Gen. Stats, ch. 30, §§ 22-32. 

2 First Parish in West Newbury v. Dow, 3 Allen, 369. 



PARISHES AND RELIGIOUS SOCIETIES. 495 

house, or of altering, enlarging, repairing, rebuilding, or 
removing their house already built, may sell their house or 
take down any pews therein ; the pews taken being first 
appraised by three or more disinterested persons chosen by 
the proprietors for that purpose. The pews newly erected 
shall be sold by their treasurer at public auction to the 
highest bidder, and deeds thereof given in like manner as 
when pew r s are sold for the payment of taxes. The money 
arising from such sale shall be applied, as far as may be 
necessary, to paying the appraised value of the pews taken 
down ; and the deficiency, if any, shall be paid by the pro- 
prietors of such house, within thirty days after the sale. 

39. Under the regulations of the preceding section, a 
parish or religious societ} T , whenever it deems it necessary 
for the purpose of building a new house, or of altering, 
enlarging, removing, or rebuilding its house already built, 
may take down any pews therein or sell the house. 

40. Nothing contained in the two preceding sections 
shall entitle a person to compensation for a pew so taken 
down, when such house is unfit for the purposes of public 
worship. 1 

Unless a meeting-house, at the time it is torn down by a vote of 
the proprietors, is not only unfit for public worship, but so old and 
ruinous as to render its entire demolition necessary, a pew-holder is 
entitled to indemnity for the destruction of his pew. 2 

41. Pews shall be personal estate. But this provision 
shall not affect any existing right of dower. 

42. Corporations for religious purposes may assess upon 
the pews in a church or meeting-house which they have 
erected or procured for public worship since the twenty- 
fifth day of March, eighteen hundred and forty-five, accord- 
ing to a valuation of said pew^s which shall first be agreed 
upon and recorded by the clerk, sums of money for the 
support of public worship and other parochial charges, 
and for the repairs of the house. Such assessments may 
be collected in the manner provided in sections thirty- two 
and thirty-three. 

l Gen. Stats, ch. 30, §§ 33-37. 2 Gorton v. Hodsell, 9 Cush. 508. 



496 TOWN AND PARISH OFFICER. 

43. A corporation which had erected or procured such 
house prior to the twenty-fifth day of March, eighteen 
hundred and forty-five, may avail itself of the provisions 
of the preceding section, if the consent of all the pew- 
owners is obtained, or two-thirds of the members present 
and voting at a regular meeting called for that purpose so 
determine. 

44. A religious society which votes to avail itself of the 
provisions of section thirty-nine (forty-two above), shall, 
upon the application of a person owning one or more pews 
in its house, within one year after said vote, purchase the 
same at the appraised value. Such appraisal shall be 
made by three disinterested persons who may be chosen, 
one by the pew-owner, one by the society, and the third by 
the two persons thus chosen. 

45. Airv religious society complying with the requisitions 
of the two preceding sections, shall be entitled to the 
privileges and subject to the liabilities incident to those 
religious societies which have erected or procured a meet- 
ing-house for public worship since the twenty- fifth day of 
March in the year eighteen hundred and forty-five. 

46. The trustees of any societ}^ of the Methodist Episco- 
pal Church, or of the African Methodist Episcopal Church, 
appointed according to the discipline or usages thereof 
respectively or as such society chooses, may organize and 
become a corporation with powers, privileges, duties, and 
liabilities, of chapter sixty-eight, subject however to ac- 
count to the quarterly meeting of such society according to 
such discipline and usages. But all powers derived from 
such organization may be revoked by the legislature. 

47. Such trustees may receive, hold, and manage all the 
property, both real and personal, belonging to such society, 
and sell and convey the same, and hold in trust gifts, 
grants, bequests, or donations, made to such society for 
the support of public worship and other religious purposes : 
provided, that the annual income thereof, exclusive of the 
meeting-house, shall not exceed four thousand dollars. 

48. The first meeting of such trustees may be called by 



PARISHES AND RELIGIOUS SOCIETIES. 497 

a justice of the peace upon the application of three or more 
of the trustees ; at which they may choose a secretary and 
other officers. The provisions of this chapter in relation 
to the warning and organization of meetings of religious 
societies shall, so far as the same are applicable, be in 
force in regard to meetings for the organization of such 
trustees. The secretary, before entering upon the duties 
of his office, shall be sworn to the faithful discharge of the 
same, and a record of such oath shall be kept in the records 
of their proceedings. 

49. An attested copy of the record of the proceedings 
at such organization shall be left with the town or city 
clerk, and recorded within the time and in the manner 
prescribed in section twenty-nine (thirty-two above). If 
the secretary omits to leave such copy within the time 
specified, the organization shall be void. 1 

i Gen. Stats, ch. 30, §§ 38-46. 



32 



498 TOWN AND PARISH OFFICER. 



CHAPTER 



1 1 XIII. 






DONATIONS AND CONVEYANCES FOR PIOUS AND 
CHARITABLE USES. 

1. The deacons, church- wardens, or other similar offi- 
cers, of all churches or religious societies, if citizens of 
this commonwealth, shall be deemed bodies corporate, for 
the purpose of taking and holding in succession all grants 
and donations, whether of real or personal estate, made 
either to them and their successors, or to their respective 
churches, or to the poor of their churches. 1 

Other similar officers in this section means officers of similar char- 
acter and with corresponding functions with those of deacons in Con- 
gregational churches, and church-wardens in Episcopal churches. 
Other officers, such as a treasurer, not of a character similar to that 
of deacons, can hold property of the church only as trustees. 2 

2. When the ministers, elders, or vestry of a church 
are, in the grants or donations mentioned in the preceding 
section, joined with such deacons or church-wardens as 
donees or grantees, such officers and their successors, 
together with the deacons or church-wardens, shall be 
deemed the corporation for the purposes of such grants 
and donations. 

3. The minister of every church or religious society of 
whatever denomination, if a citizen of this commonwealth, 
shall be capable of taking in succession any parsonage land 
granted to the minister and his successors, or to the use of 
the ministers, or granted by any words of like import; 
and may prosecute and defend in all actions touching the 
same. 

4. No conveyance of the lands of a church shall be 
effectual to pass the same, if made by the deacons without 

i Gen. Stats, ch. 31, § 1. 2 Weld v. May, 9 Cush. 181. 



DONATIONS, ETC. FOR CHARITABLE USES. 499 

the consent of the church, or of a committee of the church 
appointed for that purpose, or if made by the church- 
wardens without the consent of the vestry. 

5. No conve}^ance by a minister of lands held by him in 
succession, shall be valid any longer than he continues to 
be such minister, unless such conveyance is made with the 
consent of the town, parish, or religious societ} 7 , of which 
he is minister, unless he is the minister of an Episcopal 
church and makes the conveyance with the consent of the 
vestry. 

6. The several churches, other than those of the Episco- 
pal denomination, may choose committees for the purpose 
of settling the accounts of the deacons and other church 
officers, and, if necessary, to commence and prosecute suits 
in the name of the church against the deacons or other 
officers touching the same. 

7. The income of such grant or donation made to or for 
the use of a church, shall not exceed the sum of two 
thousand dollars a year, exclusive of the income of any 
parsonage lands granted to or for the use of the ministry. 

8. The overseers of each monthly meeting of the people 
called Friends or Quakers shall be a body corporate for the 
purpose of taking and holding in succession grants and 
donations of real or personal estate made to the use of 
such meeting, or to the use of any preparative meeting 
belonging thereto ; and may aliene or manage such estate 
according to the terms and conditions of the grants and 
donations, and prosecute and defend in any action touch- 
ing the same : provided, that the income of the grants and 
donations to any one of such meetings for the uses afore- 
said shall not exceed the sum of five thousand dollars a 
year. 

9. All trustees, whether incorporated or not, who hold 
funds given or bequeathed to a city or town for any chari- 
table, religious, or educational purpose, shall make an 
annual exhibit of the condition of such funds to the board 
of aldermen of the city, or the selectmen of the town, to 
which such funds have been given or bequeathed, and all 



500 TOWN AND PARISH OFFICER. 

transactions by the trustees concerning such funds shall 
be open to inspection b} T the board of aldermen of the 
city, or selectmen of the town, to which the returns are 
made. 

10. The probate court for the county in which the city 
or town is situated to which funds have been given or 
bequeathed as aforesaid, may on the petition of five per- 
sons cite all parties interested to appear before the court 
to answer all complaints which may then and there be 
made ; and if a trustee has neglected or refused to render 
such annual exhibit, or is incapable of discharging the 
trust reposed, or unsuitable to manage the affairs of the 
same, the court may remove such trustee and supply 
the vacancy. 1 

i Gen. Stats, ch. 31, §§ 2-10. 



ASSOCIATIONS FOR RELIGIOUS, ETC. PURPOSES. 501 



CHAPTER LXIY. 

ASSOCIATIONS FOE RELIGIOUS, CHARITABLE, AND 
EDUCATIONAL PURPOSES. 

1. Seyen or more persons within this commonwealth 
who shall have associated themselves together by an agree- 
ment in writing, such as is hereinafter described, with the 
intention to constitute a corporation for any of the purposes 
hereinafter specified, shall become a corporation under any 
name by them assumed upon complying with the provisions 
of section four of this act, with all powers, rights, and privi- 
leges, and subject to all duties, limitations, and restrictions, 
conferred by general laws upon corporations except as is 
hereinafter otherwise provided. 

2. Such association may be entered into for any educa- 
tional, charitable, benevolent, or religious purpose ; for the 
prosecution of any antiquarian, historical, literary, scien- 
tific, medical, artistic, monumental, or musical purposes ; for 
supporting any missionary enterprise having for its object 
the dissemination of religious or educational instruction in 
foreign countries, or for promoting temperance or morality 
in this commonwealth ; for encouraging athletic exercises 
and yachting ; for the association and accommodation of 
societies of Freemasons, Odd Fellows, Knights of Pythias, 
and other charitable or social bodies of a like character and 
purpose, and for the purpose of establishing and maintain- 
ing places for the uses of reading-rooms, libraries, or for 
social meeting. 

3. The agreement of association shall set forth the fact 
that the subscribers thereto associate themselves with the 
intention to establish a corporation, the name by which the 
corporation shall be known, the purpose for which the cor- 



502 TOWN AND PARISH OFFICER. 

poration is constituted, the town or city, which town or 
city shall be in this commonwealth, in which it is estab- 
lished or located, in case it shall have a capital stock the 
amount of its capital stock and the par value and number 
of its shares, and such par value ma} r be either twenty-five, 
fifty, or one hundred dollars. 

4. Such corporations may meet for organization, may 
organize, and certify their organization, in the same man- 
ner as manufacturing and other corporations are authorized 
to do by the ninth, tenth, and eleventh sections of chapter 
two hundred and twent} T -four of the acts of the year 
eighteen hundred and seventy, and acts in amendment 
thereof, and the commissioner of corporations, and the 
secretary of the commonwealth shall, upon the pa} r ment 
of a fee of five dollars to the secretar}- of the common- 
wealth, do and perform in respect to corporations organ- 
ized under this act, all acts required of them respectively, 
in respect to manufacturing corporations, by the said 
eleventh section of said act, and the certificate of incor- 
poration to be issued by the secretary of the commonwealth 
thereupon shall be in the same form and shall have the 
same legal force and effect as the certificates issued to 
manufacturing and other corporations under the said 
eleventh section of said act, and the acts in addition 
thereto. 

5. Such corporation may assume any name not pre- 
viously in use by an existing corporation, which shall in- 
dicate that it is a corporation or company, and the name 
assumed in the agreement of association shall not be 
changed, but by act of the legislature. 

6. Such corporations may prescribe by b3 T -laws to be 
adopted by them, the manner in which and the officers and 
agents by whom the purpose of their incorporation may 
be carried out. 

7. Such corporations may hold real and personal estate, 
and may lease, purchase, or erect suitable buildings for 
their accommodation, to an amount not exceeding five 
hundred thousand dollars, to be devoted to the purposes 



ASSOCIATIONS FOR RELIGIOUS, ETC. PURPOSES. 503 

and objects set forth in their agreement of association, and 
they may receive and hold in trust, or otherwise, funds 
received by gift or bequest to be by them devoted to such 
purposes. 

8. The real and personal estate of such corporations 
shall not be exempt from taxation in any case where part 
of the income or profits of their business is divided among 
members or stockholders, or where any portion of such 
estate is used or appropriated for other than literary, 
educational, benevolent, charitable, scientific, or religious 
purposes. 1 

9. Any corporation constituted under the authority of 
chapter three hundred and seventy-five of the acts of the 
year eighteen hundred and sevent}-four (preceding sections 
of this chapter) , may have, instead of a board of direc- 
tors, a board of trustees, managers, executive committee, 
prudential committee, wardens and vestry, or other officers 
having the powers of directors ; and the certificate of 
organization of any such corporation may be made, signed, 
and sworn to by the presiding, financial and recording 
officer, and a majority of the directors, trustees, man- 
agers, executive committee, prudential committee, wardens 
and vestry, or other officers having the powers of directors 
as the case may be ; and the certificate issued by the sec- 
retary of the commonwealth, under the provisions of said 
chapter, shall be modified to correspond with the facts in 
each case. 

10. Nothing contained in chapter three hundred and 
seventy-five of the acts of the year eighteen hundred and 
seventy-four, entitled, " An Act concerning Associations 
for Religious, Charitable, Educational, and other Purposes," 
shall affect the existence of any association or corporation 
formed previously to the passage of said act, under the 
provisions of any statute for any of the purposes men- 
tioned in the second section of said act, and any such cor- 
poration may, at a meeting called for the purpose, decide 
to adopt the provisions of this act, and upon so deciding 

1 Stats. 1874, ch. 375. 



504 TOWN AND PARISH OFFICER. 

and complying with the provisions of this section shall 
have the powers and privileges and be subject to the duties 
and obligations of corporations formed under chapter three 
hundred and seventy-five of the acts of eighteen hundred 
and seventy-four. Said corporation may thereupon cause 
to be prepared and presented to the commissioner of cor- 
porations a certificate signed and sworn to by the presid- 
ing, financial and recording officers, and a majority of the 
directors, trustees, managers, executive committee, pru- 
dential committee, wardens and vestry, or other officers of 
whatever name, having the powers of directors, as the case 
may be, of said corporation, setting forth a copy of the 
agreement of association, of the vote hereinbefore referred 
to, and the date of the meeting at which the same was 
adopted, and maj present such further evidence, if any, as 
the commissioner shall require of the legal existence of 
said corporation and its intention to adopt the provisions 
of this act. The commissioner of corporations shall ex- 
amine the certificate submitted to him and the evidence of 
organization produced as aforesaid, and if it shall appear 
that the provisions of law have been complied with, he 
shall certify that fact, and his approval thereof, by indorse- 
ment thereon. The secretary of the commonwealth shall, 
upon the same being deposited in his office, and upon pay- 
ment of the fee of five dollars, cause the same, with the 
indorsement thereon, to be recorded, and shall issue a 
certificate in the following form : — 

Commonwealth of Massachusetts. 

Be it known that whereas [here the names of the original sub- 
scribers shall be inserted] have formerly associated themselves with 
the intention of forming a corporation, under the name of [here the 
name of the corporation shall be inserted], for the purpose [here the 
purpose declared in the articles of agreement shall be inserted], 
under the provisions of [here the designation of the statute under the 
provisions of which organization was effected shall be inserted], with 
a capital of [here the amount of the capital stock, as it stands fixed 
by the corporation at the date of the certificate, shall be inserted, or, 
if there is no capital stock, this clause shall be omitted], and the pro- 
visions of the statutes of this commonwealth in such case made and 



ASSOCIATIONS FOR RELIGIOUS, ETC. PURPOSES. 505 

provided have been complied with, as appears from the certificate of 
the proper officers of said corporation, duly approved by the commis- 
sioner of corporations, and recorded in this office, — now therefore, I 
[here the name of the secretary shall be inserted], secretary of the 
commonwealth of Massachusetts, do hereby certify that said [here 
the name of the corporation shall be inserted] is legally organized and 
established as an existing corporation, with the powers, rights, and 
privileges, and subject to the limitations, duties, and restrictions, 
which by law appertain thereto. 

Witness my official signature, hereunto subscribed, and the seal of 
the commonwealth of Massachusetts, hereunto affixed, this 
day of , in the year of our Lord [in these blanks the 

day, month, and year of execution of the certificate shall be inserted]. 

The secretary of the commonwealth shall sign the same, 
and cause the seal of the commonwealth to be thereto 
affixed, and such certificate shall be conclusive evidence 
of the organization and establishment of such corporation 
at the date of such certificate. The secretary shall also 
cause a record of such certificate to be made, and a copy 
of such record, duly certified, may, with like effect as the 
original certificate, be given in evidence to prove the exist- 
ence of such corporation. 1 

1 Stats. 1875, ch. 49. 



APPENDIX. 



PARLIAMENTARY RULES FOR CONDUCTING TOWN 
AND OTHER MEETINGS. 

1. Organization of meeting, how effected. 

2. Duties of presiding officer. 

3. Duties of a clerk. 

4. How measures are brought before a meeting. 

5. Motions : how put to vote, &c. 

6. Motions before meeting cannot be withdrawn by mover: how dis- 

posed of. 

7. Amendments, how made and put to vote. 

8. Amendments, how amended. 

9. How question is put on motion to amend by striking out, &c. 

10. Privileged questions. 

11. Motions to adjourn. 

12. Questions of rights and privileges of members, &c. 

13. Order of the day. 

14. Motions to reconsider. 

15. Quorum, what constitutes ; effect of want of. 

Organization of meeting , how effected, 

1. Obviously the first thing to be effected in the conduct of any 
deliberative assembly is its organization ; that is, the election of a pre- 
siding officer, and a clerk or recording officer. In meetings of com- 
paratively small numbers of people, for ordinary purposes, this is 
accomplished as follows : — Some one interested in the objects of the 
meeting, at the time appointed, requests the members to come to order 
for the necessary purpose of organization, and as soon as order and 
quiet are gained requests the company to nominate some one for 
chairman or presiding officer. He thereupon declares the name first 
heard by him as nominated, and puts the question to vote, whether 
this person shall act as chairman. If this is decided in the negative, an- 
other nomination must be called for ; if decided in the affirmative, such 
person then takes the chair, and, suggesting to the company the neces- 
sity of a clerk, requests a nomination, and proceeds as above specified 
in the case of the election of a chairman. If other officers are neces- 
sary, they may be elected in a similar manner. In the case of larger 
and more important assemblies, as for example political conventions, 



508 APPENDIX. 

it is usual to have a temporary organization as above, and a commit- 
tee appointed to nominate officers for a permanent organization. In 
town meetings for the election of national, state, district, and county 
officers, the selectmen are authorized to preside, and as the town clerk 
acts as clerk of the meeting, the organization exists at the opening 
of the meeting. 1 At all other town meetings a presiding officer, 
called Moderator, must* first be chosen. The town clerk shall call the 
meeting to order, and preside during the election of moderator, and 
if the town clerk is absent the selectmen shall preside, 2 and if the 
town clerk is not present to act as clerk of the meeting, the selectmen 
shall call upon the qualified voters present to choose a clerk pro tem- 
pore, in like manner as town clerks are chosen. 3 

Duties of presiding officer. 

2. The duties of a presiding officer are, in general, to preserve de- 
corum, to announce the business before the meeting in its order, to 
receive all. motions made by members, and put to vote all questions 
properly moved and seconded, and to state the result of all votes, and 
to inform the meeting when necessary or inquired of upon points of 
order. " He may speak on points of order in preference to other 
members." It is also his duty at an adjourned meeting to take the 
chair at the proper time and call the meeting to order. It is the rule 
that the " presiding officer may read sitting, but shall rise to state a 
motion, or put a question to the assembly." 

Duties of a clerk. 

3. The general duties of a clerk of a meeting are to take notes of 
the proceedings and make the entries in his journal of " all things 
done and passed " in the meeting, but not of what is said or moved — 
simply without coming to vote. It is also his duty to read all papers 
which may be required to be read, to call the roll and note the an- 
swers when a question is taken by yeas or nays, notify persons of 
their election to office, and committees of the business referred to 
them, and keep the custody of papers belonging to the meeting. 

How measures are brought before a meeting. 

4. It has been said to be one of the duties of the presiding officer 
to announce the business before the meeting in its order. This gen- 
eral order of business or subjects to be acted upon in town and par- 
ish meetings is found in the warrant for the meeting, which should 
be followed. After the presiding officer has announced to the meet- 
ing the subject to be acted upon as contained in the warrant, it is in 
order and usual for some member to present a proposition to the 
meeting in reference to such subject in the form of a motion, the 

1 See Ch. IV., ante. 2 See Ch. V., ante. 8 See Ch. VII., ante. 



APPENDIX. 509 

member rising and standing uncovered and addressing the presiding 
officer by his title ; as, " Mr. Moderator, I move that," &c, &c. If 
the motion is one of any considerable length, or any but the most 
usual motions, it ought to be reduced to writing by the member offer- 
ing it, for convenience and to avoid mistake. The presiding officer 
may however receive it if he choose, and reduce it to writing him- 
self. Questions of order, such as whether or not there has been a 
violation of the rules of the meeting, must be decided by the pre- 
siding officer without being put to vote, and in case of dissatisfaction 
with his decision the party so dissatisfied may appeal to the meeting. 
The question is then put, Shall the decision of the chair stand as 
the decision of the meeting 1 " If the presiding officer insists upon 
voting on an appeal (being otherwise entitled), he cannot, on any 
parliamentary principle, be prevented." 1 

Motions : how put to vote, fyc. 

5. All motions, except those of mere routine, and such as pass by 
general consent, should be seconded ; that is, some member should 
rise, and, standing uncovered, state to the presiding officer that he 
seconds the motion. The motion is then in a condition to be presented 
to the meeting for its action, — which is done by the presiding officer 
stating to the assembly, " It is moved and seconded that," &c, &c. 
If it is one not likely to be debated, he adds, " If it be your pleasure 
that this motion pass, you will please to manifest it by raising the 
right hand," or, " in the usual manner," if there is a usual manner in 
which such votes are taken. After those voting in the affirmative 
have voted and been counted, if the vote is regarded as close enough 
to require a count, or the meeting has required a count, the presiding 
officer calls in a similar manner for the vote of those opposed to the 
motion ; and then states to the meeting the result. If the voters are 
equally divided, the presiding officer may if he pleases give the cast- 
ing vote. If he does not, the decision will be in the negative. " The 
presiding officer is justified in declining to put questions obviously 
frivolous or tending to disorder." 

Motions before meeting cannot be withdrawn by mover : how disposed of. 

6. When a motion has been made, seconded, and stated to the 
meeting, it is then in the possession of the meeting, and cannot be 
withdrawn by the mover except by vote of the meeting granting 
leave. 2 It is the duty of the presiding officer to state, or cause to be 
read, a motion thus in possession of the assembly as often as any 

1 Warrington's Manual. 

2 But Mr. Robinson says the mover may withdraw it at any time before 
a. decision, or before an amendment is moved, except a motion to reconsider. 
Warrington's Manual. 



510 APPENDIX. 

member requests it for his information. A motion thus before a 
meeting may be disposed of by indefinite postponement, or by post- 
ponement to a future day or hour, or by laying it on the table : such 
disposition being accomplished by motion and vote. If it be a mat- 
ter of importance, and especially if it be one upon which the mem- 
bers require to be informed by the investigation of facts, the motion 
is referred to a committee with instructions to examine the subject as 
may be directed, and report at some future day. If it be one, on the 
other hand, which members are prepared to act upon, but are not 
satisfied with the exact form in which the motion has been made, it is 
in order to amend it. 

Amendments, how made and put to vote. 

7. Amendments may be made by striking out certain words, by 
inserting or adding certain words, or by striking out and inserting or 
adding certain words. An amendment may itself be amended in the 
same manner, — but this is the limit : there can be no amendment of 
an amendment to an amendment, — and in putting the question to 
vote it must be first on the amendment to an amendment, if there be 
one, and next on the amendment as thus amended if the amendment 
to the amendment prevailed. If it is rejected, the question must 
then be put upon the original amendment. If this prevails, then the 
question is put on the original motion as amended. If it is rejected, 
the question is put upon the original motion. If an amendment pre- 
vails, or is rejected, it cannot be afterwards altered or amended. But 
if an amendment be to strike out or insert certain words and it pre- 
vails, or is rejected, an amendment may afterwards be moved to 
strike out or insert the same words in connection with others, if the 
other words so far modify the first as to make it a new amendment. 

Amendments, how amended. 

8. It has been said above, that there can be no amendment to an 
amendment of an amendment. This object must be accomplished 
by rejecting the amendment to an amendment, and then moving to 
amend the original amendment as desired. And therefore it is well 
and customary for the person desiring such amendment to give no- 
tice that, if the amendment to the amendment is rejected, he shall 
move to amend the original amendment in such a manner, stating his 
amendment so that those desiring his amendment may vote to reject 
the other. 

How question is put on motion to amend by striking out, Spc. 

9. When there is a motion to amend by striking out words, the 
form of putting the question to vote is, whether the words shall stand as 
part of the original motion, and not whether they shall be stricken out. 



APPENDIX. 511 

The passage proposed to be amended should first be read, as it 
stands ; then the words proposed to be stricken out ; and lastly the 
passage as it will stand after the amendment is adopted. An amend- 
ment ought not to be something entirely opposed to the original mo- 
tion, but something of the same nature, intended to make it more 
effectual or useful for its original purpose, but this rule is not followed 
very strictly. 

Privileged questions. 

10. When a motion is regularly before the meeting it has the prece- 
dence of all other questions, except such as are termed privileged 
questions. These are motions to adjourn ; questions relating to the 
rights and privileges of the meeting, or of individual members, and 
motions for the orders of the day. 

Motions to adjourn. 

11. A motion to adjourn takes precedence of all other questions ; 
but it must be a motion to adjourn, simply, without the addition of 
any particular time, in order to interrupt other business. It is some- 
times the case therefore that a motion is made and carried early in 
the day, that, when the meeting adjourn, it be to some particular 
day, specifying it. A motion to adjourn simply, if carried, except 
in the case of such assemblies as have regular sitting days, has the 
effect to dissolve the meeting. 

Questions of rights and privileges of members, fyc. 

12. Questions relating to the rights and privileges of the meeting 
or its members are such as arise in case of the disturbance of the 
proceedings or quarrels between members. When these are settled, 
the question interrupted thereby is to be taken up at the point where 
it was left. 

. Order of the day. 

13. When any subject has been assigned by the meeting for con- 
sideration at a particular time, it takes precedence of other ques- 
tions at that time, and is called the order for the day. 

Motions to reconsider. 

14. A motion to reconsider a vote already passed is usual in this 
country ; and if it prevails, the matter of the vote to be reconsidered 
stands in the same condition as if the vote to be reconsidered had not 
passed, unless there is a rule of the assembly regulating the matter. 
A motion to reconsider may be made by any one, whether voting 
with the majority on the original question, or with the minority, 
unless there is a rule of the assembly to the contrary. 



512 APPENDIX. 

Quorum, what constitutes : effect of want of. 

15. In most deliberative assemblies, it is required, either by law, or 
by the assembly itself, or by usage, that a certain number shall be 
present in order to transact business legally ; but where no rule is 
established in any of the ways mentioned above, a majority of the 
members composing the assembly is the required number. As no 
business can be transacted without a quorum, the meeting should not 
be opened until there is a quorum present; and whenever there 
ceases to be, and notice is taken of the fact, there must be an ad- 
journment ; but the question under consideration must be taken up 
at the next meeting of the assembly at the point where it was when 
the adjournment was had. 1 

1 Cushing's Manual of Parliamentary Practice. 



APPENDIX. 513 



FORMS. 



ASSESSOES. 

Notice to bring in Lists of Polls and Estates for Taxation. 
NOTICE. 

TO THE INHABITANTS AND OTHER PERSONS LIABLE TO PAY TAXES 
IN THE TOWN OF B D. 

The assessors of the town of B d hereby give notice to the 

inhabitants of said town, and all other persons liable to pay taxes 
therein, that they will receive on and after the first day of May, in- 
stant, until and including the fifteenth day of June next, the valuation 
of estates, and all persons liable to be taxed in said town are hereby 
required to bring in to us true and perfect lists of all the polls and 
schedules and estimates of the real and personal estates possessed by 
them on the first of May, instant, for which they are liable to pay 
taxes in said town. 

A. B. J 

C. D. > Assessors of B d. 

E E 1 

B d, May 1, 1870. 

See section six, chapter ten, page eighty -six, as to omission of real 
estate from such schedules. 

In large towns where the assessors have an office, the above may 
be dated at their office, and the requirement be to bring in the lists 
! to such office. 

Form of Certificate of the Oath administered to the Person returning and 
subscribing a List as above required. 

Essex, ss. B d, May, 187 , Then personally appeared the above 

named R. S., and made oath that the foregoing statement and list by 
him subscribed is true. Before me 

A. B., one of the Assessors of the town of B d. 

Request for Information made to Assessors of Town from which Tax-payer 
has removed. 

B D , 187 . 

To the Assessors of T d. 

Gentlemen, — By authority of the act of 1866, chapter 170, we re- 
quire such written statement of any facts within your knowledge as will 

33 



514 APPENDIX. 

assist the assessors of this town in determining the value of the per- 
sonal estate of G. K., and also the amount of personal estate on which 

he was last assessed in T d. 

Very respectfully, for 

The Board of Assessors, 
E. F., one of the Assessors of the town ofB d. 

T d, 187 . 

To the Assessors of B d. 

Gentlemen, — G. K., a resident of T d last year, was assessed 

by us as follows, viz. : — 
Real Estate 
Personal Estate 

Very respectfully, for 

The Board of Assessors, 
C. D., one of the Assessors of the town of T d. 

RULES FOR ASSESSING TAXES. 

Divide the amount to be raised for the town tax and county tax by 
six, and the quotient will be the sum to be assessed upon the polls, un- 
less it makes each poll tax more than $1.50. Divide this amount 
by the whole number of taxable polls, and the quotient will be the 
amount of each poll tax unless it exceeds $1.50. If it should, then 
make $1.50 the amount of each poll tax. Multiply the amount of each 
poll tax by the whole number of polls, and subtract the product from 
the whole amount to be raised. Divide the remainder by the taxable 
property, and the quotient will be the tax upon $1.00. Multiply the 
tax upon $1.00 by the taxable property of an individual; to the 
product add his poll tax, and the sum will be his tax. 

Warrant from Assessors to Collectors of Taxes. 

Essex, ss. 

To Collector of the town of in the County of Essex, 

Greeting : 

In the name of the Commonwealth of Massachusetts you are hereby 
required by us, the subscribers, assessors of said town, to levy and 
collect of the several persons named in the list herewith committed to 
you, and of each one his respective proportion therein set down of the 
sum total of such list, the sum of it being this town's proportion 

of a tax of granted by the last General Court of said Common- 

wealth for defraying the necessary charges and expenses of the county 
aforesaid, and a tax of voted and agreed upon by the town 

aforesaid at a meeting legally held for that purpose, on the day 

of last, for defraying the necessary charges and expenses thereof ; 
together with the sum of being the overlayings on said taxes. 



APPENDIX. 515 

And you are to complete and make up an account of the collection 
of the whole sum, and transmit and pay over the same as follows; to 
wit : to Esq., treasurer of the county aforesaid, or his suc- 

cessor in that office, on or before the day of next, the sum 

of ; to treasurer of said town, or his successor in that 

office, on or before the day of next, the sum of 

And if any person shall refuse or neglect upon demand by you 
made to pay the sum he is assessed in said list, you are to distrain the 
goods of such person to the value thereof, and the goods so distrained 
to keep at the expense of the owner for the space of four days at the 
least, and to sell the same within seven days after the seizure by 
public auction for the payment of the tax and the charges of keeping 
and of the sale ; first giving notice of such sale by posting up a notifi- 
cation thereof, in some public place in the town, forty-eight hours at 
least before the sale. If the distress shall be sold for more than the 
tax and the charges of keeping the same and making the sale, you 
are to return the surplus to the owner on demand with an account in 
writing of the sale and charges. If any person shall refuse or neg- 
lect for fourteen days after demand thereof made to pay his tax, and 
you cannot find sufficient goods upon which it may be levied, besides 
tools or implements necessary for his trade or occupation, beasts of 
the plough necessary for the cultivation of his improved lands, mili- 
tary arms, utensils for house-keeping, necessary for upholding life, 
and bedding, and apparel necessary for himself and family, you are 
to take the body of such person and commit him to prison, there to 
remain until he shall pay the tax and charges of commitment and 
imprisonment, or be otherwise discharged by order of law. 

Given under our hands by virtue of a warrant (or certificate) from 
the commissioners of the county aforesaid, and the vote of said town 
passed on the day aforesaid, this day of in the year 

eighteen hundred and 

A. B. ) 

C. D. > Assessors ofB d. 

E. F. ) 



County Tax, $ 

Town Tax, $ 

Overlaying, $> 

Highway deficiencies, $ 
The above are sold by stationers furnishing law blanks. 



Notice of the Rates of Discount to be posted up by Assessors at the time 
of committing their Warrant to the Collector. 

The assessors of the town of B d hereby give notice that they 

have committed to A. B., collector of taxes for said town, their war- 
rant for the collection of taxes, and that by a vote of said town the 



516 APPENDIX. 

following discounts will be allowed to all who shall voluntarily pay 
their taxes, viz. : — 
On all taxes paid within 30 days per cent. 
" 60 " percent. 

" 90 " percent. 

E. F. 



J. K. \ Assessors of B d, 

L. M. ) 
B d, May 1, 187 . 

Warrant from Assessors of Parish to Collector. 

E , ss. 

To A. B., treasurer and collector of taxes of the first parish of 

B d in said county, 

Greeting : 

In the name of the commonwealth of Massachusetts you are hereby 
required by us the subscribers, assessors of said parish, to levy and 
collect of the several persons named in the list herewith committed 
to you, and of each one his respective proportion therein set down of 
the sum total of such list, the sum of it being a tax of 

granted and voted by said parish, at a meeting held for that purpose 
on the day of together with the sum of being the over- 

layings on said taxes. 

And you are to complete and make up an account of the collection 
of the whole of said sums and transmit and pay over the same as 
follows ; to wit : to day of on or before the day of 

next. 

And if any person shall refuse or neglect upon demand by you 
made to pay the sum he is assessed in said list, you are to distrain the 
goods of such person to the value thereof. [The remainder is the 
same as in a warrant for the collection of town taxes.] 

Given under our hands by virtue of the vote of said parish passed 
on the day first aforesaid, this day of in the year eighteen 

hundred and 

A. B. ) 

C. D. > Assessors of the First Parish ofB d. 

E. F. ) 

Certificate to be placed on attested Copy of Warrant when Person is com- 
mitted to Prison by Collector. 

I hereby certify that the sum which A. B. now committed to prison 
is to pay as his tax within mentioned is j-q-q dollars, and upon 

his having neglected payment for fourteen days, and for want of 
goods whereof to make distress, I have taken his body. The cost of 
taking and committing him is j q-q- dollars. 

E. F., Collector. 



APPENDIX. 517 



CONSTABLES AND COLLECTORS. 

Return on a Warrant for Town Meeting. 

E , ss. March 187 . 

I have served the within warrant by posting up an attested copy 
of the same at the Town Hall, and also at the First Parish Meeting- 
house fourteen days before the said day of March, 187 , as 
within directed. 

A. B., Constable of T d. 

(Towns and parishes may order the manner in which their warrants 
shall be served, and the mode directed should be followed, and the 
fact set forth in the return. ) 

Notice to a Person drawn as Juror. 

E , ss. To E. F., of T d. You are hereby notified that on 

the day of instant, you were drawn to serve as juror 

at the term of the Superior Court to be holden at N on the 

first Monday of next, and to attend said court on said first 

Monday at o'clock, a.m. 

A. B., Constable of T d. 

Return on a Venire for the Appointment of Jurors. 

E , ss. Pursuant to the within directions I notified the select- 
men and town clerk of said T d, to meet as within prescribed and 

draw a juror to serve at the court within named and on the 
day of instant G. H. was drawn as such juror ; and on the 

day of instant I summoned him to attend said court on the first 

Monday of 187 . 

A. B., Constable ofT d. 

Fees, service, $ 

Travel, miles, $ 

Bond to be given by Treasurer and Collector of Town. 



Know all men by these presents, 

That we A. B., of B d, in the county of E and Common- 
wealth of Massachusetts, as principal, and C. D. and E. F., of said 

B d, as sureties, are holden and stand firmly bound and obliged 

unto the said town of B d in the full and just sum of 

dollars, to be paid unto the said town ; to which payment well and 
truly to be made, we bind ourselves, our heirs, executors, and admin- 
istrators, firmly by these presents. 

Sealed with our seals. Dated the day of in the year of 

our Lord one thousand eight hundred and 

The condition of this obligation is such, That whereas said A. B. 



518 APPENDIX. 

has been chosen treasurer and collector of taxes for said town of 

B d for the current year, and has accepted said offices, and been 

duly sworn to the faithful discharge of the duties thereof respectively. 
Now if the said A. B. shall, as treasurer and collector as aforesaid, 
faithfully collect, account for, and pay over all the taxes which he 
shall be legally required to collect, and also faithfully discharge all 
other legal duties of said offices, then this obligation shall be void ; 
otherwise to remain in full force and virtue. 

A. B. ) SEAL. 

C. D. } 

E. E. ) " 

Signed, sealed, and delivered in presence of 

Demand for Tax on Real Estate. 

B d, May 187 . 

Mr. I hereby demand of you the payment of y^ dollars, 

that being the amount of tax assessed for the year 186 , on the real 
estate in this town, situated in street, and by you. 

You are hereby notified that if said amount, together with the costs 
thereon, is not paid within fourteen days from this date, the said 
estate will be sold at auction, pursuant to law. 

A. B., Collector of Taxes of the town of B d. 

Notice of Sale of Real Estate to be posted. Also Form of Advertisement. 
This estate to be sold for unpaid taxes. 
collector's notice. 
The owners and occupants of the following described real estate 
situated in the town of county of and commonwealth 

of Massachusetts, are hereby notified that the tax thereon assessed to 
E. D. for the year 186 , according to the list submitted to me as col- 
lector of taxes for said town by the assessors, remains unpaid, and 
that said parcel of real estate will be offered at public auction for 

sale at the Town Hall in said B d, on August 187 , at o'clock, 

p.m., for the payment of said taxes, together with the costs and 
charges thereon, unless the same shall be previously discharged. 

[Here insert a substantially accurate description of the real estate, 
together with the amount of tax unpaid.] 

A. B., Treasurer and Collector ofB d. 

B d, August 1, 187 . 

Collector's deed. 

COMMONWEALTH OF MASSACHUSETTS. 

To all persons to whom these presents may come, I, A. B., collector 
of taxes for the town of B d, in the county of E and Com- 
monwealth of Massachusetts, 

Send greeting : 

Whereas the assessors of taxes of said town of B d, in the list 



APPENDIX. 519 

of assessments for taxes, which they committed to me to collect for 
the year one thousand eight hundred and sixty- duly assessed C. D. 
as owner of the real estate in said town, which is hereinafter described, 
the sum of dollars and cents, for state, town, and 
county taxes thereon ; and whereas, on the day of 
a.d. 187 , I duly demanded of said [If demand should be made 
on the mortgagee or an attorney of the non-resident owner, here in- 
sert the fact that such demand was made] the payment of said taxes, 
so as aforesaid assessed on said real estate, and the same were not 
paid ; and whereas, after the expiration of fourteen days from the 
time of demanding payment of said taxes as aforesaid, the same still 
remaining unpaid, I duly advertised said real estate to be sold by 
public auction, for the payment of said taxes and all incidental costs 
and expenses, on the day of a.d., 187 , at o'clock 
in the forenoon, at the Town Hall, in said town of B d, by pub- 
lishing an advertisement thereof, containing also a substantially ac- 
curate description, and the name of the owner of said real estate, and 
the amount of the taxes so as aforesaid assessed thereon, in a public 
newspaper published in said county, three weeks successively, the last 
publication whereof was one week before the time appointed for the 
sale, and by posting the said advertisement in three public and con- 
venient places in said town of B d; to wit: and also on 

said real estate, three weeks before the time appointed for said sale ; 
and whereas said taxes so as aforesaid assessed on said real estate not 
being paid, I proceeded, at the time and place appointed as aforesaid 
for the sale, 1 to sell [If a part only of the estate is sold, here insert 
what part] said real estate by public auction for the discharging and 
payment of said taxes thereon and said incidental costs and expenses, 2 

1 The following is sometimes here the day of A. d. 187 , 

inserted: " It being my opinion that at o' clock in the forenoon, at 

the said land could not be conven- the same place, and then and there 

iently divided, and a part thereof set made public proclamation of said ad- 

off without injury to the residue, and journment : and in like manner in all 

judging it to be most for the public respects, I adjourned said sale from 

interest to sell the whole of said day to day, to the same hour and 

land." place, being seven days (or being 

2 When the town is the purchaser days, but not more than seven days 
under provisions of (§§ 47, 73, and 74, in the whole) in the whole, and then 
ch. 15, pages 130, 136, and 137), in- and there made public proclamation 
sert here the following in place of of said adjournments; and at the 
that in the form above, to wit : — time and place so fixed and pro- 
" and no person appeared and bid claimed for making said sale on each 
for the estate thus offered for sale an of said several days, I proceeded to 
amount equal to the said taxes and offer for sale said real estate by pub- 
costs and expenses, and I thereupon, lie auction for the payment of said 
at said time and place appointed for taxes, costs, and expenses, and no 
sale, adjourned said sale until person appeared at either time so 



520 APPENDIX. 

and the said was struck off to of in the county of 

and state of for the sum of dollars and cents, he being 

the highest bidder therefor. 

Therefore know ye, that I, the said A. B., collector of taxes afore- 
said, by virtue of the power vested in me by law, and in consideration 
of the said sum of dollars and cents to me paid by said 

the receipt whereof I do hereby acknowledge, do hereby give, grant, 
bargain, sell, and convey unto the said the following described 

real estate, the same being the land taxed as aforesaid, to wit : 

To have and to hold the same, to the said heirs and assigns, 

to their use and behoof for ever; subject to the right of redemp- 

tion by any person legally entitled to redeem the same. 

And I, the said collector, do covenant with the said heirs and 

assigns, that the sale aforesaid has, in all particulars, been conducted 
according to the provisions of law. 

In witness whereof, I, the said A. B., collector as aforesaid, have 
hereunto set my hand and seal, this day of in the year 

eighteen hundred and seventy. 

A. B., Collector of Taxes for the town of B d. seal. 

Signed, sealed, and delivered in the presence of 

E , ss., August 187 . Then personally appeared the above- 
named A. B., collector of taxes for the town of B d, and acknowl- 
edged the foregoing instrument to be his free act and deed. 

Before me, Justice of the Peace. 

Entered and recorded in registry, lib. fol. 

Summons to Delinquent Tax-payer. 

B d, March 1870. 

Your tax for the year 1869, amounting to $ is now due. You 

are requested to pay the same into the town treasury within ten days 
from this date, with twenty cents for this summons. At the expira- 

fixed by adjournment for said sale half of the said town of B d, said 

and bid a sum equal to said taxes, real estate for the sum of dol- 

costs, and expenses, and at the time lars and cents, being the amount 

and place so fixed for said sale by of said taxes and said incidental costs 

the last of the said adjournments, and expenses. 

namely, on the day of "Therefore know ye, that I, the 
a. d. 187 , at o'clock in the said A. B., collector of taxes as af ore- 
forenoon, I made a public declara- said, by virtue of the power vested 
tion of all the facts hereinbefore re- in me by law, and in consideration 
cited ; . and no person ' then appeared of the premises, hereby give, grant, 
and bid a sum equal to said taxes, bargain, sell, and convey unto the 
costs, and expenses ; and I thereupon said town of B d, the follow- 
then and there immediately gave ing described real estate, the same 
•public notice that I should, and that being the land taxed as aforesaid, 
I then and there did purchase on be- to wit: " 



APPENDIX. 521 

tion of that period, if not paid, a warrant will issue therefor according 
to law, increasing the expense by a charge for poundage and interest. 

A. B., Treasurer and Collector, 
Mr. 

The certificate of an abatement must be exhibited to the collector, and all 
costs and fees incurred before such exhibition must be paid. 

Warrant from Collector to Sheriff or Constable. 

E , ss. 

To the sheriff r of the county of E or his deputies, or the con- 
stables of the town of B d, or to any or either of them, 

Greeting : 

In the name of the Commonwealth of Massachusetts, you are re- 
quired to collect of of said the sum of dollars and 
cents, it being the amount of taxes assessed against said in 

the town of B d in the county of E , in said commonwealth, 

for the year of our Lord 18 in the lists committed to me for collec- 
tion by the assessors of said B d. 

And if the said shall refuse or neglect upon demand by you 

made to pay the sum aforesaid, you are to distrain his goods to the 
value thereof, and goods so distrained to keep at the expense of the 
owner for the space of four days, at the least, and to sell the same 
within seven days after the seizure, by public auction, for the payment 
of the tax and charges of keeping, and of the sale ; first giving notice 
of such sale by posting up a notification thereof in some public place 
in said town, forty-eight hours at least before the sale. If the distress 
shall be sold for more than the tax, and the charges of keeping the 
same, and making the sale, you are to return the surplus to the owner, 
on demand, with an account in writing of the sale and charges. 

If the said shall refuse or neglect after demand by you made 

to pay said sum, and you cannot find sufficient goods upon which it 
may be levied, besides tools or implements necessary for his trade or 
occupation, beasts of the plough necessary for the cultivation of his 
improved lands, military arms, utensils for housekeeping necessary 
for upholding life, and bedding, and apparel necessary for himself and 
family, you are to take the body of such person and commit him to 
prison, there to remain until he shall pay the tax and charges of com- 
mitment and imprisonment, or be otherwise discharged by order of 
law. 

You are to make a return of your doing on this warrant within 
days from date hereof. 

Given under my hand at said B d this day of A. d. 

187 

Treasurer and Collector ofB d. 



522 APPENDIX. 

Notice that a Warrant has been issued to Constable, Sfc. 

B d, January 4, 1870. 

Mr. 

Sir, — The town treasurer has placed in my hands a warrant for 

the collection of your tax in B d for the year 1869. 

Your immediate attention to the same will much oblige 

Yours respectfully, 

Constable and Deputy Collector, 
Tax, $ 

Costs, $ 

Interest from 1869, $ 



FENCE VIEWERS. 

Complaint to the Fence Viewers by the Owner of Land that the Fence 
between his Land and the adjoining is insufficient. 

To A. B. and C. D., two fence viewers of the town of W . The 

partition fence between my land and that of G. K., situated in W , 

on the road leading from to which he ought to maintain, is in- 
sufficient. I hereby request you to survey the same, and direct him 
to repair or rebuild it. 

N. 0. 

W 187 . 

Notice to Adverse Party in above Complaint. 

To G. K., of W . N. O., of said W , has complained to us, 

two fence viewers of said W , that the partition fence between 

your land and his adjoining situated in W , on the road leading 

from to is insufficient, and has requested us to survey the 

said fence and direct you to repair the same. You are notified that 
we shall make the survey on Monday next at nine o'clock, a.m. 



P. R. 



W , 187 



5, m[ Fence Viewers. 



Award of Fence Viewers. 



To G. K., of W . We, having surveyed the partition fence be- 
tween your land and that of N. 0., situated in said W , on the road 

leading from to which you ought to maintain, and having 

found said fence out of repair and insufficient, hereby direct you to 
repair or rebuild said fence in days from the date hereof. 

P. R. ) Fence Viewers of 

S. T. J the town of W 

W , 187 . 



APPENDIX. 523 

Certificate of the Sufficiency and Appraisal of Fence built by the Complain- 
ant when the Occupant of the adjoining Lot has neglected to comply with 
the Directions of the Fence Viewers. 

We hereby certify that we surveyed a certain partition fence be- 
tween the land of N. O. and G. K., situated in said W , on the 

road leading from to and adjudged the same to be insuffi- 

cient and illegal, and did order and direct that the said G. K. should 
repair and build the same within days from the date of said 

order, and the said G. K. not having complied with said order, the 
said N. O. at his own proper costs and charges has repaired and re- 
built the same, and we now adjudge the same to be sufficient, and 
appraise the said fence at the sum of dollars. 

And we certify that our fees for that service are as follows : — 

For viewing said fence, $ 



For appraising the same, <jj> 
Paid us by the said N. 0., 



W , 187 



"P T? ) 

«* rn > Fence Viewers of W- 



Notice of Fence Viewers when the right of Occupants in Partition Fence is 
in dispute, and their Award. 

To of . M. N. has represented to us, two fence viewers 

of the town of W , that a controversy has arisen between him 

and you about your respective rights in the partition fence between 
your land and his (or the land occupied by him and you as the 

fact may be), situated and has applied to us on that account; we 

therefore hereby notify you that we shall be at the premises on 

the day of at o'clock in the noon, to assign 

to each party his share of said fence. 

1^' q' > Fence Viewers. 

Dated 18 . 

Whereas a controversy has arisen between A. B. and C. D. of 
about their respective rights in a partition fence in the line between 
their lands situated at we the subscribers, fence viewers of the 

town of W , having, on the application of the said A. B. (and after 

having given due notice to the said C. D.) viewed the premises and 
duly considered the matter in dispute, do hereby assign to each of the 
said parties his share of said fence, as follows, viz. : — 

The said A. B. shall build and keep in repair a good and sufficient 
fence from to And the said C. D. shall build and keep in 

repair a like fence on the other part of said line, viz., from to 



524 APPENDIX. 

And each party is to erect (or repair) his part of said fence within 
days from the date hereof. 

Given under our hands at said W , this day of 18 

H.N 



-vt /- ( Fence Viewers. 

Notice issued by Fence Viewers when Lands are divided by a Brook, River, 
Pond, fyc. ; and their Determination in such Case. 

To of A. B. of has represented to us, two fence 

viewers of the town of B , that you refuse to join with him (or 

that you and he disagree, as the fact may be) in making a partition 
fence between your land and his (or, between the lands occupied by 
him and you), the same being bounded or divided by a pond (river, 
brook, fyc, as the fact may be), and has therefore made application to us 
to view the same and determine thereupon, we therefore hereby notify 
you that we shall make such view and determination on the day 

of at o'clock. 

H. N. ) Fence Viewers of the 

M.P.J town of B d. 

Dated the day of 187 . 

Whereas it has been represented to us, two fence viewers of the 

town of B , by A. B. of whose land is bounded or divided 

from the land of C. D. (or occupied by C. D.), that the said C. D. hath 
refused to join with him (or that they disagreed in making a partition 
fence, as the fact may be), and the said A. B. having applied to us to 
view the same and determine thereupon, we have, after giving due 
notice to the said C. D., performed that duty, and do determine that 
the said pond (river, brook, or creek, as the fact may be) does not answer 
the purpose of a sufficient fence, and that it is impracticable to fence 
at the boundary line, we therefore determine that said fence shall be 
set up as follows, viz., And that the said A. B. shall build and 

maintain and the said C. D. shall build and maintain 

Given under our hands this day of 18 . 

-»/ p' [ Fence Viewers. 

[The other forms required by fence viewers can readily be made up 
from the foregoing.] 



FIELD DRIVERS. 

Notice to Owner of Beasts taken up and impounded. 

To A. B., of B d. I have this day taken up and impounded in 

the town pound in said town, under the care of C. D., pound-keeper, 
one pair of red oxen belonging to you, found doing damage in the 



APPENDIX. 525 

enclosure of E. E. (or running at large without a keeper on the public high- 
way in said town), and for that cause I have impounded said oxen. 

O. P., Field Driver of B d. 

B d, June 187 . 

[Notice to be posted up in case there is no one to receive foregoing 
notice, (see ante, p. 289,) may be as above, except the address " To A. B., 

of B d," which should be omitted, and instead of " belonging to 

you," insert " the owner of which is unknown."] 

Memorandum to be left with Pound Keeper. 

To C. D., keeper of the town pound in the town of B d. I have 

this day taken up and distrained one bay horse, belonging to E. E. of 
said B d, found doing damage in my enclosure, and for that rea- 
son I have impounded said horse in the town pound under your care. 

The damages demanded are, $ 

Charges for keeping per day, $ 

G. H. 

B d, June 187 . 



OVERSEERS OF THE POOR. 

Notice to another Town that Pauper whose Settlement is in such Town is 
Expense chargeable to that Town, frc. 

To the Overseers of the Poor of the town of T , 

Gentlemen, — A. B., whose legal settlement is in your town, but 
now residing in this town, being in needy circumstances, has applied 
to this board for relief, which we have granted, and charged to your 
town, and shall continue so to do until you remove or otherwise pro- 
vide for his supx)ort. 

For and in behalf of the overseers of the poor of the town of B . 

With respect, gentlemen, your obedient servant, 

One of said Overseers. 

Reply to foregoing. 

T , 187 . 

To the Overseers of the Poor of the of B . 

Gentlemen, — Your notice dated informing us that on 

expense as a pauper in your and alleging that the legal settle- 

ment is in this town, is received. 

Upon due inquiry, we can find no evidence that this town is the 

place of lawful settlement of said pauper. We therefore decline 

removing said pauper or paying any expense that has arisen, 

or may arise, for support. 

By order and in behalf of the overseers of the poor of the town of 

T d, 

Your obedient servant, 

One of said Overseers. 



526 APPENDIX. 



SURVEYORS OF HIGHWAYS. 

Notice to Tax-payer where and when he can work out his Tax, and Amount 
of same. 

The sum you are assessed to the highways and town ways for B d 

for the year 187 , is, — 

Poll, 9 

Personal, $ 

Real, $ 

Total, 

Please take notice that I hereby appoint Monday instant, at 

nine o'clock, a.m., and the road leading from the First Parish Meeting- 
house, &c, near the dwelling of J. R., as the time and place for pro- 
viding materials and working on the highways and town ways. 

E. D., Surveyor of Highways. 

B d, May 1870. 



SELECTMEN. 

Warrant for calling the Annual Town Meeting. 

E , ss. To either of the Constables of the town of B , in 

said county Greeting : 

In the name of the Commonwealth of Massachusetts, you are 

directed to notify the inhabitants of the town of B qualified to 

vote in elections and in town affairs, to meet at the Town Hall in said 

B , on the day of next, at o'clock in the 

forenoon, then and there to act on the following articles : — 

1. To choose a moderator to preside in said meeting. 

2. To choose all necessary town officers for the year ensuing. 

3. To hear the annual report of the selectmen, and act thereon. 

4. To raise such sums of money as may be necessary to defray 
town charges for the ensuing year, and make appropriations of the 
same. 

And you are directed to serve this warrant, by posting up attested 
copies thereof, one at the Town Hall, and one at each of the public 
meeting-houses in the said town, 1 fourteen days at least before the 
time for holding said meeting. The polls will open at o'clock, 

a.m., and close at o'clock, p.m. 

Hereof fail not, and make due return of this warrant, with your 
doings thereon, to the town clerk, at the time and place of meeting 
as aforesaid. ♦ 

Given under our hands this day of in the year one thou- 

sand eight hundred and 

Selectmen of B . 

1 Or as the town may have directed. 



APPENDIX. 527 

Warrant for calling Town Meeting for voting for Governor, fyc. 

E , ss. To either of the Constables of the town of B , in 

said county Greeting : 

In the name of the Commonwealth of Massachusetts, you are re- 
quired to notify the inhabitants of the town of B , qualified to 

vote in elections, to meet at the Town Hall, in W , on Tuesday, 

the day of November next, it being the Tuesday next after the first 
Monday of said month, at of the clock in noon, to bring 

in their votes for a governor and lieutenant-governor of the common- 
wealth, and for senators, on one ballot, for the district of for 
the year ensuing. The polls will open at o'clock, a.m., and 
close at o'clock, p.m. 

And you are directed, &c. (as in the foregoing form.) 

If to bring in Votes for Representative to Legislature of State. 

To bring in their votes on one ballot for a representative (or repre- 
sentatives, stating the number) from district number to the General 
Court. 

If for the choice of a Representative to Congress. 

To give their votes for a representative in the Congress of the 
United States, for the district. 



Notice to Selectmen to Perambulate Boundary Lines between Towns. 

To the Selectmen of the town of F . 

Gentlemen, — The subscribers, selectmen (or two of the selectmen) 

of the town of B , hereby give notice, that we shall meet at 

on the day of at of the clock in the 

noon, to perambulate and run the lines between the said towns, and 
renew the marks, according to the law of the commonwealth : at 
which time and place you are hereby requested to attend for this service. 

B , the day of in the year 18 . 

Selectmen ofB . 

Appointment of Substitute to Perambulate Boundary Lines between Towns. 

To A. B. of We, the selectmen of the town of B — — , do hereby 
appoint you to perambulate and run the dividing lines between said 
town and the town of and renew the marks ; and you are to 

make returns of your proceedings into the clerk's office of the town 
of B as soon as you have completed this service. 

Given under our hands this day of 18 . 

Selectmen of B . 



528 APPENDIX. 

License. 

The selectmen of B do hereby license C. D. to keep an intelli- 
gence office in said B — - for the year ensuing (or as an auctioneer, in- 
serting here all particulars required to be inserted by the statute). 

Selectmen of B d. 

B d, this day of 187 . 

Assignment of Division of 'Highways to Surveyor. 

To A. B., one of the surveyors of highways of the town of B d. 

We hereby assign to you, to be kept in repair by you, the highways 
and town ways within the following limits; to wit, From the guide- 
post near the First Parish Meeting-house to the town line on the road 
leading to, &c. 

J. K. ) 

L. M. > Selectmen ofB d. 

N. O. S 

Notice issued by Selectmen on Petition to lay out Town Way. 

On the petition of and others, that be laid out as 

town way, the selectmen hereby give notice that they will meet 
at on the day of at o'clock, m., to view the 

premises, and hear the parties interested. 

Per order of the selectmen, 

Town Clerk. 

B d, 187 . 

(Or signed by selectmen personally.) 

Report to Town of laying out such Way. 

We the selectmen of the town of W , having complied with the 

requirements of the law in relation to notifying the owners of land 
over which we were petitioned to lay out a town way, have laid out 
such town way as follows : Beginning at a monument on the south- 
erly side of Ferry Street, so called, at the land of R., then through 
said R/s land south twenty degrees east, one hundred and fifty rods 
to land of E., then continuing the same course through land of said E. 

fifteen rods, until it intersects the highway leading to the town of S , 

the said town way to be fifty feet in width. Our agreement with the 
owners of the land over which said town way passes for their damages 

is as follows : That the said town of W shall pay to the said R. 

the sum of seventy-five dollars ; and we have assessed damages of the 
said E. as the law directs — at twenty-five dollars. [If there are trees, 
fences, and other property on the land over which the town way 
passes, state the kind of such property, and the time allowed to re- 
move the same] And your selectmen hereby respectfully report said 
town way to the town for its acceptance. 

Dated at W , this day of in the year 187 . 

Selectmen of the town of W . 



APPENDIX. 529 

Voting List. 

Voting List prepared by the Selectmen of the town of W , 187 . 

Names. Names. 

N. B. The undersigned hereby give notice that they will be in 
session at the town officers' room in the Town Hall on also 

on for the purpose of receiving evidence of the qualifications of 

those persons intending to vote at the coming elections, and to cor- 
rect and revise the above voting list. 

All those intending to vote are particularly requested to have their 
names registered. 

Selectmen of the town of W — : — . 

[It is not thought advisable to give any form of the annual report 
of selectmen or other town officers. So far as it is a report of the 
condition of the treasury, it may be in the form of a debit and credit 
account, so as to present intelligibly the state of the town finances 
during the year. Other reports should consist of a succinct state- 
ment of the doings of the officers making the reports in regard to such 
subjects as are of importance to the town. 

They usually commence " In accordance with the requirements of 
law," or "In compliance with a vote of the town," and if necessary 
to make the matter perfectly clear insert the vote, or " In accordance 
with custom," as the fact may be, " we beg leave to submit the follow- 
ing report of our doings for the last year." And they conclude " All 
of which is respectfully submitted by 

" Selectmen or School Committee, or" frc] 



TOWN CLERK. 

Warrant of Town Cleric to Constable to notify Town Officers to take the 
Oath of Office. 

To A. B., one of the Constables of the town of B . 

[l. s.] Greeting : 

The following is a list of those persons who were this day chosen 
into office, at a meeting of the inhabitants of said town, and who have 
not taken the oath of office required of them by law ; viz. [Here 
designate those offices to which they were chosen.] 

In the name of the Commonwealth of Massachusetts you are hereby 
required within three days from the date hereof to summon each of 
the said persons to appear before me, clerk of said town, within seven 
days from the service of such summons, to take the oath by law pre- 
scribed to the office unto which they are respectfully chosen. 

Hereof fail not, and make return of this warrant to me with your 
doings thereon, within seven days from the date hereof. 

Town Clerk. 
34 



530 APPENDIX. 

Certificate of Marriage. 

Between of aged years, by occupation a He 

was born in and was the son of This will be his mar- 

riage. And of aged years. She was born in and 

was the daughter of This will be her marriage. 

The intentions of marriage, by the parties above named, were duly 
entered by me in the records of the town of B relating to mar- 
riages, according to law. 

Dated at B— , this day of a. i>. 187 . ^ ^ 

The parties above named were joined in marriage at by me, 

this day of a. d. 187 . 

Attest, 

Intention of Marriage between 
Mr residing in He is years of age, a by occu- 

pation, was born in Father's name (in f nil) . Mother's name 

(in full). This will be his marriage. 

And M residing in She is years of age, was born 

in Father's name (in full). Mother's name (in full). 

This will be her marriage. 

Return of a Birth in B to the Town Clerk. 

Date of birth, 186 . Full name of Child, Sex, 

Color Place of birth (street and number), Christian name 

of father, Christian name of mother, Present residence of 

parents, ' Occupation of the father, Father's birthplace, 
Mother's birthplace, 

Return of Death to the Town Clerk. 
Date of death, 18 . Name, Color, Aged 

years months days. Place of death, 

Residence, Sex, Single w ., Marri f 

Occupation, Wife of Birthplace, Widow of 

Name of father, Name of mother, Birthplace of father, 

Birthplace of mother, Cause of death, Primary 

Duration, Secondary Duration, Place of interment, 

Date of interment or removal, Undertaker or informant, 

Physician's Certificate of Death. 
This certifies that died on the day of 187 , aged 



years, months, 

Cause of death, Primary, Duration. Secondary, 

Duration ' Physician. 



APPENDIX. 531 

Town Cleric's Certificate of the Registry of a Death. 

[The person to whom this Certificate is given shall deliver it to the person 
having charge of the interment (if other than himself), before the burial when 
practicable, otherwise within seven days thereafter.] 

I, town clerk of do hereby certify that the death of 

who died at street, 186 , aged years, 

months, days, was duly registered by me on the day of 

186 . 

Town Clerk. 
Dated this day of 186 . 

B , 187 . 

Permission is hereby given to to remove the body of who 

died at B , 18 , aged years, months, day , for inter- 
ment at the particulars required by law having been duly reg- 
istered by me. 

Town Clerk. 

Appointment of Persons to appraise Lost Goods or Stray Beasts. 

To A. B. and C. D., both of B , in the county of E , [l. s.] 

Greeting : 

You are hereby appointed to appraise upon oath, at their true value 
[here describe the goods], . . . found (and if it be beast add, and taken 
up) by E. F., of 

And you are directed to make return of this warrant with your 

doings thereon, to the town clerk's office of said B within seven 

days from the date hereof. Given under my hand and seal the 
day of 187 . 

L. P., Town Clerk ofB 

Appointment of Persons to determine Damages done by Beasts taken up 
and impounded. 

To A. B. and C. D. of B d. You are hereby appointed to ap- 
praise, on oath, the damage done to the enclosure of E. P. by a pair 
of red oxen which for that cause have been taken up and impounded 
in the town pound. 

B d, this day of 187 . 

J. H., Clerk of the town ofB d. 

If the appointment is made at the request of the person impound- 
ing, add to the foregoing, " Also the costs and expenses of impound- 
ing, &c, including a seasonable compensation for your own services." 



ADDENDA. 



[The references enclosed in parentheses are to chapters, sections, and pages 
of this book.] 

ELECTIONS. 

1. Meetings in towns for the election of national, state, district, and 
county officers, shall be opened as early as twelve o'clock, noon, of 
the election day. The polls shall be kept open at least four hours, 
and for such longer time as a majority of the voters present shall by 
vote direct. 

2. At any town meeting for the election of any officers, when the 
presiding officer shall have announced a time at which the meeting 
has directed the polls to be closed, the polls shall not be closed until 
that time has arrived, excepting that in no case shall the polls be kept 
open after the hour of sunset. 1 (See chapter four, page thirty -eight.) 

3. (Section four of chapter four, page thirty-nine,) is amended by 
striking out the word " twenty," wherever the same occurs in said 
section, and inserting instead thereof the words " twenty-five ; " also 
by striking out the word "fifteen," wherever the same occurs in said 
section, and inserting instead thereof the word "twenty." 2 

4. In all towns in this commonwealth registration of voters shall 
cease at ten o'clock in the afternoon on the Saturday next preceding 
the day of any election. 3 (See chapter four.) 



TAXES, AND COLLECTION OF SAME. 

1. In making the estimate of the personal property of any assess- 
able person as provided for in sections twenty-seven and twenty-eight 
of chapter eleven of the General Statutes (sections thirteen and four- 
teen of chapter ten of this book, pages eighty-seven and eighty-eight), 
the assessors shall specify the amount of each class of personal prop- 
erty mentioned in clauses numbered eighth, ninth, tenth, and eleventh, in 
section two of this act (next section), and enter the same in column 
number five upon the blank books furnished under the provisions of 
chapter one hundred and sixty-seven of the acts of the year eighteen 

i Stats. 1879, ch. 2. 2 stats. 1879, ch. 68. * stats. 1879, ch. 37. 



ADDENDA. 533 

hundred and sixty-one (contained in chapter nine) : provided, however, 
that any error or over-estimate of any class shall not be taken into 
account in determining whether any person is entitled to an abate- 
ment, but only the aggregate amount of such estimate. 

2. Section three of chapter one hundred and sixty-seven of the acts 
of the year eighteen hundred and sixty-one (section six, chapter nine, 
page seventy-nine) is hereby amended by striking out the clauses 
numbered " Second " to " Twelfth " inclusive, after the clause numbered 
" First" and inserting the following : — 

" Second. — The tax on each poll. 

" Third. — The total value of personal estate. 

"Fourth. — The total value of real estate. 

" Fifth. — The total valuation of the city or town. 

" Sixth. — The total tax for state, county, and town purposes, in- 
cluding highway tax. 

" Seventh. — The rate per cent of total tax, or rate per one thousand 
dollars. 

" Eighth. — The total amount as valued for assessment of money at 
interest, and other debts due the persons assessed more than they are 
indebted or pay interest for, specifying how much of said amount is 
debts secured by mortgage, and how much unsecured debts. 

" Ninth. — The amount of money on hand, including deposits tax- 
able as valued for assessment. 

" Tenth. — The total amount of public stocks and securities as 
valued for assessment. 

"Eleventh. — The total amount of stocks in corporations without 
the state as valued for assessment. 

" Twelfth. — Total number of horses assessed. 

" Thirteenth. — Total number of cows assessed. 

" Fourteenth. — Total number of sheep assessed. 

" Fifteenth. — Total number of dwelling-houses assessed. 

"Sixteenth. — The total number of acres of land assessed in the city 
or town." 

And the secretary of the commonwealth shall cause the tables of 
aggregates provided for by section one of chapter one hundred and 
sixty-seven of the acts of the year eighteen hundred and sixty-one to 
be so amended as to conform to the requirements of this act. 1 

3. ( Section fifty of chapter fifteen, page one hundred and thirty-one) 
is amended by striking out the words " provided in section eleven of 
this act," and inserting in place thereof the words " allowed to him 
when he exercises the power of taking." 2 

4. ( Section seventy-two, chapter fifteen, page one hundred and thir- 
ty-six) is amended by striking out the words a one per centum per 
month," wherever they occur in said section, and inserting instead 
thereof the words " seven per centum per annum." 3 

1 Stats. 1879, ch. 72. 2 stats. 1879, ch. 73. 3 stats. 1879, ch. 74. 



584 ADDENDA. 

5. (Section forty of chapter fifteen, page one hundred and twenty- 
eight) is amended by striking out the words " of the county where 
the real estate lies," and inserting in place thereof the words " pub- 
lished in the city or town where the premises to be sold for taxes are 
situated," and also by striking out the words " an adjacent county," 
and inserting in place thereof the words " the county where the real 
estate lies." x 

6. (Section fifty of chapter fifteen, page one hundred and thirty- 
one) is amended by striking out these words, viz. : "and the sum of 
five dollars for examination of title," and inserting instead thereof 
these words, viz. : " and a sum not exceeding three dollars, for exami- 
nation of title, a deed of conveyance or release, and all other neces- 
sary intervening charges." 2 

7. (Section eighteen of chapter nine, page eighty-three) is amended 
by striking out the words " two years from the time of its assessment," 
and inserting instead thereof the words " the calendar year in which 
the tax is assessed." 3 



MISCELLANEOUS. 

1. Every person having under his control a child between the ages 
of eight and fourteen years, who shall withhold the information in his 
possession and sought by the school committee or their agents as 
required by chapter three hundred and three of the acts of the year 
eighteen hundred and seventy-four (included in chapter thirty-four), 
or falsify in regard to the same, shall be punished by a fine not ex- 
ceeding twenty dollars, or by imprisonment in the county jail for a 
term not exceeding thirty days. 4 

2. In cases of violation of any law, ordinance, or by-law, relating 
to the public health in any town, complaint may be made by any 
agent of the board of health of such town appointed to make sanitary 
inspections, as well as by the persons now authorized by law to make 
such complaint. 5 (See chapter on Board of Health.) 

3. Section three of chapter two hundred and thirty-two of the acts 
of the year eighteen hundred and seventy -eight (section twenty of 
chapter twenty -nine, page two hundred and seventy-five and two hun- 
dred and seventy-six) is hereby amended by adding at the end thereof 
the following words : "provided, however, that in respect to any estate 
fronting upon such street or way which by reason of its grade or level, 
or for any other cause, cannot be drained into such sewer, the select- 

i Stats. 1879, ch. 69. 4 Stats. 1879, ch. 21. 

2 Stats. 1879, ch. 94. 5 Stats. 1879, ch. 75. 

8 Stats. 1879, ch. 43. 



ADDENDA. 535 

men shall not ascertain, assess, and certify the assessment thereon, or 
give notice of such assessment to the owner of such estate, until 
the incapacity of such estate to be drained into such sewer has been 
removed. 1 

4. Chapter fifty of the acts of the year eighteen hundred and fifty- 
six is hereby amended by adding the following section : Section 4. 
No person shall construct or maintain any fish-weir within the tide- 
waters of this commonwealth unless authorized in the manner set 
forth in the first section of this act, or from any island within said 
tide-waters without authority in writing from the mayor and alder- 
men of every city, and the selectmen of every town, distant not over 
two miles from said island. Any person who shall construct or main- 
tain any weir in violation of the provisions of this section shall for- 
feit the sum of ten dollars for each day he shall maintain such weir, 
to be recovered in any court of competent jurisdiction to the use of 
any cities or towns, from the mayor and aldermen or selectmen of 
which he ought to have obtained the authority aforesaid, and shall 
also be liable to be indicted therefor and to be enjoined therefrom. 2 

5. The statutes relating to the appointment of guardians to minors 
are so amended as to authorize the appointment of a guardian, who 
shall have the custody of any minor child, whose parents or surviving 
parent the probate court, upon a hearing after such notice to the 
parents or surviving parent as the court may direct, shall find to be 
unfit to have such custody. 3 

Upon the application of the selectmen of any town, or the over- 
seers of the poor of any town, probate courts may, within their re- 
spective jurisdictions, pending any proceedings before them for the 
appointment of a guardian under the provisions of chapter three 
hundred and sixty-seven of the acts of the year eighteen hundred and 
seventy-three (preceding portion of this section), or for the removal 
of any guardian of any minor, appoint some suitable person to be 
temporary guardian of such minor during the pendency of such pro- 
ceedings ; and the person appointed such temporary guardian shall 
have the custody and control of such minor until such proceedings 
shall be concluded : provided, however, that the probate court having 
jurisdiction may at any time with or without notice terminate such 
temporary guardianship. 4 

6. The county commissioners, on application made to them in writ- 
ing by any person owning property liable to destruction or damage, " 
by the breaking of any reservoir, reservoir-dam, or mill-dam, or upon 
such application by the mayor and aldermen of any city, or selectmen 

i Stats. 1879, ch. 55. 8 Stats. 1873, ch. 367. 

2 Stats. 1877, ch. 119. 4 stats. 1878, ch. 230. 



536 ADDENDA. 

of any town, on account of liability of loss of life, or damage to any 
road or bridges therein, from the same cause, shall, after notice to the 
owners of such reservoirs or dams, or their agents, of the time and 
place appointed therefor, view and thoroughly examine the same, 
with the assistance of a competent engineer. 

7. If, upon such examination, in the judgment of the commission- 
ers, the structure is not sufficiently strong and substantial to resist the 
action of the water under any circumstances which may reasonably 
be expected to occur, they, with the advice of an engineer, shall de- 
termine and direct what alterations or repairs are required to make 
it permanent and secure, and shall give written directions to the 
owners thereof to make such alterations or repairs within a reason- 
able time, and the results of such examination, and orders thereon, 
shall be duly recorded by said commissioners. 

8. If the owner of a reservoir or dam thus examined and adjudged 
to be unsafe, refuses or neglects to make such alterations or repairs 
as the commissioners order, they shall cause such reservoir or dam, 
or such parts thereof as they may deem necessary for the safety of 
life or property, roads or bridges, on the stream below, to be removed, 
or the water drawn off ; and after such removal no structure shall be 
erected except in compliance with the requirements contained in the 
preceding sections ; and if the water has been drawn off, the reservoir 
shall not be filled again until the orders of the commissioners have 
been complied with. 

9. The commissioners shall make such orders, as to the costs of all 
proceedings under the three preceding sections, as they may deem 
just : provided, that in all cases where the reservoir or dam is ad- 
judged unsafe, said costs shall be paid by the owner. 

10. No order, approval, request, or advice of the county commis- 
sioners shall have the effect to impair in any manner or degree the 
legal duties and obligations of the owners of reservoirs, reservoir- 
dams, or mill-dams, or their liability for the consequences of their 
illegal acts, or of the neglect or mismanagement of any of their 
agents or servants. 

The supreme judicial court shall have jurisdiction in equity, and 
may make all judgments and decrees necessary to carry into effect 
the provisions of the five preceding sections. 

11. No assessors of any town shall commit any tax list to the col- 
lector of taxes until the bonds of such collector and of the treasurer 
of said town have been given and approved as now required by law ; 
and the selectmen shall, upon the receipt and approval of such bonds, 
give written notice thereof to said assessors. 

The selectmen may, if any town treasurer shall fail for ten days 
after his election to give his bond as required by law, declare his ofiice 
vacant. 2 

i Stats. 1875, ch. 178. 2 stats. 1879, ch. 157. 



ADDENDA. 537 

12. Every town by by-law may provide regulations not inconsist- 
ent with the laws of the Commonwealth, under which the collector 
thereof shall exercise the powers given by (sections eighty -four and 
eighty-nine, chapter fifteen, pages one hundred and forty and one 
hundred and forty- three) ; but the passage of any such ordinance or 
by-law shall not render invalid any proceedings of the collector un- 
der said sections, commenced before the passage of such ordinance or 
by-law. 1 

13. (Section fourteen of chapter forty-eight, page four hundred 
and eighteen) is repealed, and the penalties imposed by chapters two 
hundred and nineteen and two hundred and twenty-one of the acts of 
the year eighteen hundred and sixty, entitled respectively " An Act 
concerning Contagious Diseases among Cattle," and "An Act in 
addition to an Act concerning Contagious Diseases among Cattle," 
are hereby made applicable to the diseases in horses, asses, and mules, 
known as farcy and glanders, and to contagious or infectious diseases 
in domestic animals. 2 ' 

14. In all cases of glanders or farcy the appraisal of the animal so 
diseased shall be based on its value in its diseased condition, and the 
appraisers shall be the following persons. First, one member of the 
board of commissioners on contagious diseases among cattle. Sec- 
ond, one veterinary surgeon selected by said commissioner. Third, 
one reputable person who may be selected by the owner of the ani- 
mal, if he chooses to do so, otherwise the two appraisers above named 
shall select the third. 

All acts or parts of acts inconsistent herewith are repealed. 3 

15. The fees for attending as grand juror or traverse juror in any 
court, and the fees for attending as a juror before a sheriff, shall be 
three dollars a day for attendance, and eight cents a mile for travel 
out and home. The fees of jurors in all other cases shall remain as 
now fixed by law. 4 

16. Any town, either alone or jointly with any other town, may 
take a lease of any great pond within their limits, for the purpose of 
cultivating useful fishes under such conditions and restrictions as the 
commissioners on inland fisheries may prescribe, and may make ap- 
propriations for that purpose. 5 

17. Whoever within this commonwealth sells, offers for sale, ex- 
poses for sale, or has in his possession trout, land-locked salmon or 
lake trout, except alive, between the first day of October in each year 
and the next succeeding first day of April, shall forfeit for each fish 
taken, caught, or killed between said first day of October in each year 

1 Stats. 1879, ch. 169. 4 stats. 1879, ch. 182. 

2 Stats. 1879, ch. 178. 5 Stats. 1873, ch. 195; Stats. 1874, 

3 Stats. 1879, ch. 160. ch. 135. 



538 ADDENDA. 

and said next succeeding first day of April, and so sold, offered for 
sale, exposed for sale or had in his possession, the sum of ten dollars, 
and in all prosecutions under this act the possession of any trout, 
land-locked salmon, or lake trout during the time included between 
the dates stated above shall be prima facie evidence to convict under 
this act (this section). 

The selectmen of any town and all police officers and constables 
within this commonwealth shall cause the provisions of this act to be 
enforced in their respective cities and towns ; and all forfeitures 
and penalties for violations of the provisions of this act shall be paid 
one-half to the person making the complaint and one-half to the city 
or town in which the offence is committed. 1 

18. Towns may at legal meetings grant and vote such sums as they 
judge necessary for the purpose of keeping in repair or decorating the 
graves within their limits, of soldiers or sailors who have died in the 
military or naval service of the United States, or the monuments or 
other memorials erected to their memory. 2 

19. I do not find any provision for the election of an auditor in 
towns, but such officer is recognized in the statutes, and he is author- 
ized to require claimants to certify, under oath, that the whole of the 
articles for which claim is made has been furnished, or that the whole 
labor or service has been performed, and that no commission, dis- 
count, bonus, reward, or present of any kind has been received, or is 
promised or expected on account of the same. 3 

1 Stats. 1876, ch. 221. 3 Stats. 1862, ch. 10L 

2 Stats. 1870, ch. 169. 



INDEX. 



[Figures refer to pages. For the duties of officers upon particular subjects, see 
the title of those subjects in the Index.] 



A. 

ABATEMENT, 

of taxes 83, 91-93 

ADDENDA 532-538 

ALMSHOUSES 185-189 

(See Workhouses and Almshouses.) 

ANATOMICAL SCIENCE, 

how to be promoted 443-444 

APPRENTICES .386,387 

(See Masters, &c.) 

ASSESSMENT OF TAXES 75-84 

(See Taxes, Assessment of.) 

ASSESSORS OF TAXES, 

election of 55 

may be selectman and collector of taxes 56 

what constitutes a board 56 

vacancy, how filled 60, 61 

may be elected for term of years 61 

how number may be increased or diminished 61 

general duties of 75-84 

assistant assessors 75 

oath of 75 

neglecting to take oath 75 

returns to be made by 75-83 

penalties for neglect 80-82 

to issue notice to tax-payers to bring in list 86 

duty in reference to list 87 

penalty for agreeing to less assessment than tax-payer is 

liable for 87 

estate, how estimated when no list is brought in . . . 87, 88 

oath to valuation list 87 

penalty for omission of oath 90 

assessors shall give warrant to collector 90 



540 INDEX. 

ASSESSORS OF TAXES,— continued. 

requisites of warrant, new one may be issued when first is 

lost or destroyed 90 

must post up notice of rates of discount on taxes .... 91 

duty as to abatement of taxes 83, 91-93 

to assess persons applying before certain day 94 

how far responsible 94 

compensation of 95 

must return amount of assets and indebtedness of towns . 96 
must make certain returns to tax commissioner .... 103 

may assess property omitted 96, 97 

duties of, in reference to taxation of corporations 98, 99, 105-111 

appeal from act of 120 

may order immediate collection of tax 122 

duty as to highway taxes 228 

census 330, 331 

returns as to steam-engines 374 

taxes in fire districts 401 

shall make a list of dogs owned, &c. in town, and return 

same 466 

shall make a list of persons liable to militia duty .... 481 

ASSOCIATIONS, 

how persons may make, for literary, benevolent, scien- 
tific, charitable, religious, or educational purposes . . 501-505 

AUCTIONEERS, 

how licensed 378-380 

shall give bonds 378 

shall keep account of goods sold 378 

penalties upon 378-380 

where may sell 377-380 

penalties upon tenant permitting illegal sale 379 

penalty for selling without license 379 

how far authority may be delegated 379 

these provisions do not apply to certain officers .... 379 
penalty for fraud, &c, in selling 380 

AUDITOR 538 

B. 
BANKS, 

how taxed 105-111 

BASTARD CHILDREN, 

father of, may be prosecuted, and proceedings in refer- 
ence thereto 172 

BEASTS, (See Pounds and Impounding Cattle.) 

what and how may be impounded 284, 285 

remedy for damage done to land by 286 



INDEX. 541 

BEEF, 

weighers of, how appointed, and fees 343 

BETTERMENT LAW 222-225 

board of town officers authorized to lay out, widen, alter, 
&c. a way, may assess portion of expense on abutters , 222 

assessment not to exceed one-half benefit 222 

how collected 222 

expense shall include what 222, 223 

party aggrieved may have jury 224, 225 

estate, how may be surrendered 223 

what ways are included within provisions of this law . . 223 

assessment may be apportioned 224 

proceeding when assessment is made on leased land . . . 225 

when this law applies 225 

acceptance by town 225 

when reassessment may be made . 225 

BIBLE, 

to be used in schools 299 

BILLIARD TABLES, 

keeping of, how licensed 377 

BIRTHS, 

registry and return of 419-424 

BOARD OF HEALTH 425-442 

how chosen 425 

duty and authority of, as to physician 425 

may appoint an agent 425 

as to removal of nuisances 426 

appeals from, to county commissioners 427 

authority to make compulsory examination of premises 428, 429 

to make provision for persons infected 430 

to station persons on borders of neighboring states . . . 430 

may remove diseased persons from jail, &c 432 

provisions for vaccination, when made by 433 

may establish quarantine 433 

may establish hospitals 435 

to receive immediate notice of cases of small-pox or other 

dangerous diseases 435 

may assign places for carrying on trades which are nui- 
sances 437-439 

may make regulations concerning burial-grounds .... 439 

duties of, as to houses for boarding infants 441 

to make arrangements concerning cemeteries and interments 445 
complaints of violation of law, by whom made 534 

BOILERS AND HEAVY MACHINERY, 

weighers of, how appointed 68, 71 

BOUNDARIES OF HIGHWAYS 241 



542 INDEX. 

BOWLING ALLEYS, 

keeping of, how licensed 377 

BRIDGE, 

over railroad, requisites of . 250 

BUILDINGS, 

permission to move, how given 376 

wooden, not to be erected without leave of selectmen . . 376 

BY-LAWS, 

towns may make 9 

definition of by-law 9 

for removal of snow from roofs, &c 10 

sidewalks 10 

prohibiting fast driving 11 

penalties for breach of, how recovered 11 

as to driving cattle through streets 11 

regulating passage of vessels through draw 11 

as to use of reservoirs, &c 12, 13 

how and by whom enforced 13, 14 

by whom to be approved 14 

how published 14 

upon whom binding 14 

concerning use of public baths . . 26 

transportation of offal 26, 27 

truant children 319-323 



c. 

CAMPHENE, 

towns may make regulations as to storage of 325 

CEMETERIES AND BURIALS 445-450 

towns to provide 445 

private land, how used for 445 

board of health to make arrangements concerning . . . 445 

interments, meaning of 446 

proceedings upon closing burial-ground 446 

penalty for destruction and injuries in cemetery .... 447 
how deposits may be made to preserve .... 447, 448, 450 
proceedings upon taking land for 448-450 

CENSUS, 

when and how to be taken 330, 331 

CERTIFICATE OF ELECTIONS 44 

blank forms, how furnished 45 

CHARCOAL, 

how measured 356 

penalties for selling, by unsealed measures 356 

appointment and duty of prosecutors 356 



INDEX, 543 

CHECK LIST, 

how to be kept 47 

how used in election of town officers 56 

CHILDREN, 

attendance in school 313-315 

employment of, and regulations respecting them . . . 316-318 

children not attending school 319-323 

(See Truants.) 

houses of reformation for 320 

towns to provide for, who are neglected, &c. by parents . 321 
may be restored to reformed parents 322 

CLERK OF TOWN, 

to return to state librarian town report 14 

to have custody of records 29 

important books to keep in safe 29 

shall make copies of records 31 

to preside at election of moderator 53 

election of 55 

duty as to notifying persons elected to office 58 

vacancy, how filled 60 

general duties of 62-69 

to record votes 62, 63 

to administer oath to town officers 62 

selectmen to preside at election 62 

to be appointed pro tempore in case of vacancy 62 

to return votes 63, 64, 69 

records of soldiers and seamen to be kept by, &c. ... 64, 65 

shall record mortgages 65 

shall record intentions of marriage 66, 67 

and give certificate 67 

fees of 66, 68, 69 

duty as to lost goods 68 

attachments 69 

penalty for certain neglect 69 

shall note upon constable's bond when filed 150 

duty as to school registers and returns 309-312 

licensing dogs 465-472 

COAL, 

weight of, &c 354, 355 

weighers of, to be appointed 355 

to be weighed before sale 355 

fraud in weight, how punishable 355 

COLLECTION OF TAXES 121-146 

(See Collectors.) 
COLLECTORS, 

to keep record of all persons from whom they receive pay- 
ment of tax, and return same to selectmen 39 



544 INDEX. 

COLLECTORS, — continued. 

penalty for neglect 39 

election of 121 

when may be sworn 56 

records of town need not show how he should be elected . 57 

oath of constables sufficient 59, 121 

provisions in reference to bond of 59, 121 

vacancy, how filled 59, 121 

to notify assessors of inability of tax-payers 83 

duties of, in collection of taxes 121-146 

with what liabilities chargeable 121, 122 

may be given same authority as treasurer 122 

must collect according to warrant 122 

may complete collection after term of office expires . . . 122 

must make demand before distraining 122 

assessors may order immediate collection of persons of doubt- 
ful credit 122 

proceedings in case of abatement claimed 122,123 

case of error in name in tax list 123 

proceedings in case of refusal or neglect to pay tax, distress 

and sale 123, 146 

when arrest of person may be made, and proceedings 124, 125 

may require aid 126 

proceedings when tax-payer has removed out of precinct of 

collector 126 

in collection of tax upon personal estate of deceased per- 
son 126, 127 

in collection of tax on real estate from person in occupation 127 

taxes a lien on real estate 127 

how mortgagee may protect himself from sale without 

notice .128 

duties of collector as to notice of mortgagee 128 

demand before sale, evidence of 128 

advertisement of land, requisites of 128, 129, 140 

proceedings in case of sale of real estate 129 

deed of collector, &c 130 

when estate may be redeemed, and by whom . . 131, 132, 145 

when mortgagee may pay taxes 132 

equity power of supreme court in case of sale to pay taxes . 133 
collector must post an attested copy of tax list and war- 
rant 133, 134 

fees of 134, 136, 139, 140 

may be authorized to issue warrants to sheriff or constable . 134 

duty as to rendering accounts 134 

duty when failing to collect a tax without default .... 135 

penalty for neglect to pay moneys collected 135 

proceedings when collector becomes unable to do his duty 
or absconds, &c, or dies 135, 136 



index. 545 

COLLECTORS, — continued. 

what is necessary in order to recover back tax 136 

interest on taxes not paid 133 

proceedings when collector bids in real estate for town . 136-139 
proceedings when tax-payer desires to take poor-debtors' 



oath 



139 



proceedings when sale is supposed invalid 140-142 

collector may take land for town 142 

proceedings on s-uch taking 142-144 

treasurer may withhold money due tax-payer . . 144 

COMMON, PUBLIC, 

certain buildings not to be erected on 28 

COMMON, TENANT IN, 

rights where tax has been paid by cotenant 127 

CONSTABLES, 

election of 55 57 

to declare acceptance 57 

oath of, to act as collector 59 

vacancy in office of, how filled 59 60 

duties of ..... .' 59? 149J152 

who are exempt from serving as 60 

penalty for refusing to take the oath 149 

when may serve civil process 149 150 

remedy upon bond ; may require aid in execution of duties 150 
may apprehend criminals in any place in commonwealth 150, 151 

shall aid state constables 151 

duty as to summoning jurors 328 

may enter billiard-room and bowling-alley 377 

to prosecute violators of law as to hawkers and pedlers . . 385 
shall cause certain dogs to be killed, and make return 
thereof 4gg 

CORD WOOD, 

measurement of 353 

penalty for violation of law 353 

fees of measurers 353 

CORPORATIONS, 

taxation of 98 99 

certain, how taxed 105-111 

CRACKERS, 

restrictions in use 374 



D 

DAMS, 

provisions respecting 535 

DEATHS, 

registry and return of 419-424 

35 



546 INDEX. 

DEBTS OF TOWNS, 

limits of 15-26 

how payment of to be provided for 15-26 

DECORATION 

of graves of soldiers and sailors 538 

DISEASED CATTLE, 

provisions concerning 415-418, 537 

DISORDERLY CONDUCT, 

penalty for, in town meeting 51 

DISTRESS AND SALE, 

to pay taxes 123 

property exempt from 123 

DISTRICTS, 

fire, water supply, improvement, and school, 

taxes in, provisions concerning 146 

DOGS, 

provisions as to licensing 465-472 

loss from dogs worrying sheep and other domestic animals, 

how reeovered 468-469 

DOMICILE 113 

DONATIONS, &c. FOR PIOUS AND CHARITABLE 

USES 498-500 

DRAINS. (See Sewers and Drains.) 
DRAWBRIDGE, 

by-laws as to regulation of same 11, 12 

DRAWING, 

to be taught in public schools 292 

E. 

ELECTION AND APPOINTMENT OF TOWN OFFI- 
CERS 55-61 

ELECTIONS, {See Town Meetings.) 

of representatives to congress 34, 35 

in cases of no choice 35 

vacancy . 35 

precepts for 35 

of national, state, district, county, town officers, and presi- 
dential electors, meetings for, how called .... 37, 41, 42 

manner of conducting 38-52 

penalty for false answer at 41 

of representatives to general court, meetings for, how 

called 42-48 

practice in case of no choice of representative to general 

court 44-45 

in fire districts ' 403 



INDEX. 547 

EMBEZZLEMENT, 

by town officers, penalty 486 

EXEMPTIONS, 

from serving in same office successively 60 

from taxation 100-104 



F. 

FAST DRIVING, 

may be prohibited in streets 244 

FENCES, 

as boundaries of highways 240 

when adjudged a nuisance, how removed 242 

what is a legal fence 277 

adjoining occupants to fence 277 

their duty as to location, &c. of fences 277, 278 

proceedings when party neglects to repair or rebuild . . . 278 

remedy of party building whole fence 279 

controversies about repairing, &c, how determined . . . 279 
how division fence is made when lands bound upon brook, 

creek, pond, &c 279 

proceedings as to fence when lands have been occupied in 

common, and it is desired to occupy in severalty . . 280, 281 
proceedings when one ceases to improve his land or lays 

open his enclosure 282 

when unenclosed land is enclosed or used 282 

when fence is in two towns 282 

in case of water fence 283 

duty of owners of land where no division of fence .... 282 

FENCE- VIEWER, 

election of 55, 277 

vacancy in office of, how filled 59, 60, 71 

duty of, as to partition fences 277-283 

penalty for neglect of duty 283 

fees of 283 

FERRY, 

town to provide, penalty for neglect 245-246 

two towns may 245 

FIELD DRIVER, 

election of 55 

vacancy in office of, how filled 59, 60, 7 1 

what beasts to impound 2!84 

particulars of his duty in regard to 284-291 

fees of field driver 285, 286 

owner of land injured by beasts may impound . . . 286, 287 

FIRE DISTRICT, 

taxes in provisions concerning 146 



548 INDEX. 

FIRES AND FIRE DEPARTMENTS . . 391 

firewards, how chosen, and duty 391-393 

may pull down house 391, 392 

when owner entitled to compensation 392 

penalty for purloining, &a, at fire 393 

enginemen, how appointed, and duty 393 

engines and hose carriages, how manned 393, 394 

compensation of enginemen 395 

chief engineer, duty of, &c 395 

fire departments, how established 396-398 

board of engineers 396 

authority of selectmen 397, 398, 403 

engineers 397, 398, 406 

hose companies, hook and ladder, &c 397 

fire districts 398-404 

towns may regulate inspection, construction, and use of 

buildings 404 

returns to be made by selectmen 405 

penalty for obstructing fire-engine, &c 405 

how water may be taken from aqueducts 406 

FISH AND FISH WEIRS, 

provisions relating to 535, 537 

FLUID — INFLAMMABLE OR EXPLOSIVE, 

towns may make regulations as to storage of 375 

FORMS, 

of instruments and papers to be used by town officers . 513-531 

FREE STONE AND SOAPSTONE, 

regulations respecting measurement of 350, 351 

FURNACES AND STEAM-ENGINES, 

to be licensed, proceedings to obtain 370-372 

may be adjudged a nuisance 371,372 

proceedings therefor 371, 372 

owner of, may have jury — proceedings 371 

selectmen may suspend use if they consider it unsafe . . 372 
and abate it as nuisance if use is continued 372 

G. 

GAUGER, 

of liquid measures, how appointed 57 

GRAIN, 

how sold ; weight, measures 343 

measurers of, appointment of, and fees 344 

penalty for selling without weighing 344 

penalty for frauds of measurer 344 

GRAND JURORS, 

how drawn, summoned, &c • 328 



INDEX. 549 

GRAVEL PITS, 

select men may provide 246,247 

GUARDIAN, 

of minors, how appointed, upon application of selectmen or 
overseers of poor 535 

of spendthrifts 172 

GUIDE-POSTS, 

how erected, &c 238 

GUNPOWDER, 

restrictions on keeping of 374 

remedy for violation of law 375 

H. 

HAWKERS AND PEDLERS, 

what articles may sell 380, 381 

how licensed . . 381-385 

duty of party licensed 382 

penalty for forging a license 385 

for selling without 385 

where may sell 385 

who to prosecute for violation of law 385 

HAY, 

how branded 345, note 

penalty for selling without having been branded .... 345 

inspectors of bundle hay, how appointed 345 

duty of 345, 346 

fees 346 

penalty for selling without having been inspected .... 346 

HAY-SCALES, 

superintendent of, how chosen 57 

selectmen may appoint and remove ; duty of ... . 344, 345 

HEALTH. (See Board of Health.) 

hp:-goat, 

penalty for allowing to go at large 291 

HERRING FISHERIES 473,474 

HIGHWAYS, 

selectmen may make regulations concerning use of . . . 71 

word includes what 190 

laying out and discontinuance of 190 

application for, how made, and conditions 190 

proceedings of commissioners thereupon .... 190-200, 206 
laying out void, unless land is taken within two years . . 192 
commissioners may make changes between termini . . . 192 
proceedings when no one appears to object to laying out . 192 
commissioners may order existing way amended when . 192, 193 



550 INDEX. 

HIGHWAYS, — continued, 

and may require culverts, &c. to be made 193 

when town cannot object that town way is not a highway . 193 
commissioners may order a way closed for repairs . . . 193, 194 

how such repairs may be ordered to be made 194 

proceedings on locating a new road 194 

commissioners to specify manner of making alterations on 

new highway 194 

their proceedings in reference to same 194 

damages from laying out, &c, how estimated, &c. 195, 196, 220, 221 

damages from repairs, how estimated, &c 196 

what shall be taken into account in estimating damages . 196, 197 
damages, how estimated, paid when different persons inter- 
ested in the property 197-200 

party aggrieved by doings of commissioners may have jury 200 

who is " party aggrieved " 200 

duty of commissioners 200 

when applications for jury may be made 200, 201 

two or more persons may join 201 

proceedings upon petition for jury 201-210 

expenses, how paid 206 

penalty on town for not making highway ordered .... 207 
commissioners may order certain expenses paid out of 

county treasury 207 

how jury shall assess damages . 208 

verdict of jury, how far conclusive 209 

costs, of whom recovered 209 

person neglecting to appear, barred from claiming damages 209 
turnpike road may be laid out as highway, — damages occa- 
sioned by laying out, widening, discontinuing, &c. (See 

also Betterment Law) 209, 210, 222-225 

repairs of. (See Repairs op Highway.) 

selectmen may make regulations as to passage of vehicles 

in highways 218 

highway shall not be laid out over public common or park . 218 
may be overflowed by reason of mill-dam, — proceeding 220, 221 

fences as boundaries of 241 

town may make by-law as to pasturing cattle in highway . 244 

also to prevent fast driving 244 

may be dug up to lay aqueduct pipes 247 

watering-places may be constructed within 247 

railroad crossing 250-263 

(See Railroads.) 

roads to swamps, mines, &c 264-266 

dedication of 267 

location of, how made certain 268 

not to be laid out over burying-ground 269 



INDEX. 551 

HIGHWAY SURVEYOR, 

election of 55 

vacancy in office of, how filled 59, 60, 71 

penalty for refusing to serve 226 

selectmen may be 226 

penalty for neglect of duty 226 

how far liable for deficiencies in ways 226 

cannot use money in his hands for repairs in making new 

structures 226 

general authority of 229 

must expend money judiciously 228 

town may authorize to make contracts 230 

must render account, &c 231 

HIGHWAY TAXES, 

abolished 120 

section twelve, page two hundred and twenty-eight, vir- 
tually repealed by section nineteen 120 

assessed and paid as other taxes 235 

HOOPS AND STAVES, 

inspectors of, how chosen, and duties 346, 347 

HOSPITALS, 

may be established by towns, &c 435 

I. 

IMPOUNDING CATTLE. 

(See Pounds and Impounding Cattle.) 
IMPRISONMENT, 

for non-payment of taxes, how released from 125 

INCOME, 

subject to taxation 98 

INDUSTRIAL SCHOOLS, 

how established 304, 305 

INDUSTRIAL STATISTICS, 

duties of selectmen to return 485, 486 

INFECTIOUS DISEASES, 

duties of selectmen and board of health as to . .. . . . 435 

INHABITANT, 

of what place person is, how determined 112 

INNHOLDERS AND VICTUALLERS, 

how licensed 364, 365 

duties of 365, 366 

not to give credit to certain students 365 

INSPECTION AND SALE OF ARTICLES, 

beef 343 

grain and meal 343, 344 



552 INDEX. 

INSPECTION AND SALE OF ARTICLES,— -continued. 

hay 345, 346 

hoops and staves 346, 347 

lime 347, 349 

leather 349, 350 

marble 350 

soapstone 350 

free stone 350 

milk 351-353 

wood 353 

bark 353, 354 

coal 355 

charcoal 356 

lumber 357 

timber 357, 361 

provisions 361-363 

INTELLIGENCE OFFICES, 

keepers of, to be licensed 369 

penalty for keeping, without license 369 

J. 

JOINT TENANT, 

rights of, when tax has been paid by cotenant 127 

JUNK DEALERS, 

to be licensed 367, 368 

penalty for selling without license 368 

towns may make regulations in reference to 368 

JURORS, 

who liable to serve as 324 

who exempt 324-325 

liable to serve but once in three years, except, &c. . . . 325 

how to be selected, &c 325, 326 

how to be apportioned 326 

venires for, how issued and served 326 

may be drawn in town meeting 328 

how summoned 328 

penalty for neglect to attend 329 

penalty of officers for neglect of duty in reference to . . 329 

fraud in drawing, how punished 329 

fees of 637 

L. 

LEATHER, 

measurers of upper, to be appointed 349 

duty of 349, 350 

fees of 350 



INDEX. 553 

LEATHER, — continued. 

penalty for altering, &c. marks 350 

buyer and manufacturer may waive inspection, &c. . . . 350 

LIBRARY, PUBLIC, 

towns may establish and maintain 8 

LIEN, 

taxes on real estate, when a . • • . 127 

LIME, t 

inspectors of, to be chosen 347, 349 

fees of . . 348 

how to be packed 348 

lime from Maine 349 

penalty for selling, contrary to law 349 

for shitting contents of casks after branding . , 349 

LIMITATION 

" until another is chosen " not necessary 59 

LIVERY STABLE. (See Stable.) 

LOCK-UP, 

certain towns may keep 5 

LOST GOODS, 

duties of town clerk in reference to 68 

LUMBER AND TIMBER 357-361 

duty of surveyors of 357 

assortment of 357-360 

fees for surveying and marking 360 

penalty for fraud of surveyor 360 

penalty for selling, without survey, &c 360 

penalty for assuming without authority duties of surveyor 361 

LYING-IN HOSPITAL, 

regulations concerning 440 

M. 

MARBLE, 

regulations respecting measurement of 350, 351 

MARRIAGE, 

notice of intentions of, to be recorded by town clerk ... 66 

certificate of, to be recorded . 67 

registry and returns of 419-424 

MASTERS, APPRENTICES, AND SERVANTS, 

who may be bound as apprentices and servants, and how 386, 387 
consideration secured to minor ; party binding shall inquire 

into treatment of apprentice, &c 388 

complaints for misconduct, &c. of master, how prosecuted 388, 389 
apprentice not to be bound after death of master .... 390 
provisions to apply to mistresses 390 



554 INDEX. 

MEASURER OF WOOD AND BARK, 

how chosen 55, 57 

MEASURES. (See Weights and Measures.) 

MEETINGS. (See Town Meetings.) 

MILITIA LAW, 

duty of town officers under 480-484 

MILK, 

inspectors, how appointed, and duty of 351-353 

penalties upon seller 352, 353 

MINISTERS OF GOSPEL, 

duty as to schools 295 

MINOR, 

certain sales by, how regulated 380 

MODERATOR, 

to receive votes of all persons on list 49 

general duties of 53 

election of 53 

penalty for certain acts 54 

MORTGAGEE OF REAL ESTATE, 

to give notice to collector of taxes 128 

N. 
NUISANCES, 

common 411-414 

to health . 437 

O. 

OATHS OF OFFICE, 

by whom administered • 58 

penalty for not taking 59 

OFFENCES AGAINST PUBLIC PEACE 408-410 

OVERSEERS OF THE POOR, 

election of 55 

duties of 158-176 

not to remove minors beyond limits of commonwealth . . 159 

penalty for so doing . 159 

shall have care of poor 160 

authority as to contracting debts for support of poor out 

of almshouse 160 

authority over poor 161 

to provide for destitute who have settlement in other places 163 
town shall recover therefor of town of settlement .... 164 

proceedings in such case 164 

overseers shall relieve poor having no settlement in state 164-168 

expenses, how recovered 164-166 

duty as to prosecutions 168 

to keep records of paupers, &c. supported 168 



INDEX. 555 

OVERSEERS OF THE POOR, — continued. 

make returns of same 168 

penalty for neglect 169 

may perform duties of superintendent of alien passengers . 172 

duties of, as to support of bastard children 172 

may require applicants to work 176 

when directors of workhouses, &c 185 

disputes between, and masters of workhouses 188 

to dispose of certain profits of work 188 

authority of, to give bodies of paupers to physicians for dis- 
section 443 

P. 

PARISHES AND RELIGIOUS SOCIETIES 487-497 

how organized 487, 488, 501-505 

membership of, how made and dissolved 488 

who may be admitted 488 

by-laws 489 

annual meeting 489 

officers of 489 

meetings, how called and held 490 

corporations not to be taxed for parochial purposes . . . 491 

powers of unincorporated religious societies 492 

money, how raised to repair, rebuild, &c 493-496 

powers of trustees of Methodist Episcopal Church . . . 496 
donations and conveyances of property for pious and char- 
itable uses 498-500 

PARLIAMENTARY RULES, 

for conducting town and other meetings 507-512 

PARTNERSHIP PROPERTY, 

where taxed 118 

PAUPERS, 158-176 

towns to support 158 

settlement of, how acquired 177-184 

insane paupers 159 

expense of, in state lunatic hospitals 159, 160 

kindred of, to support 161 

proceedings to compel kindred 161 

who are kindred 162 

who are paupers 162 

shall be relieved where found destitute 163 

shall be relieved having no settlement in state 164 

having settlement in another town may be removed thereto; 

proceedings 165 

proceedings upon death of 168 

paupers may be sent to state almshouses 169 



556 INDEX. 

PAWNBROKERS, 

how licensed • . . . 368 

penalty for acting without license 369 

PEDLERS. (See Hawkers and Pedlers.) 

PERAMBULATION, 

of town lines, proceedings 72, 73 

PERSONAL ESTATE, 

where taxed 114-118 

held in trust „ 116 

of deceased person 117 

mortgaged 118 

of partnership 118 

PETROLEUM OIL, 

storage and sale of, and of its products 460,464 

POLICE OFFICERS, 

how appointed 58 

may carry what weapons 157 

may enter billiard-room and bowling-alley, &c 377 

duty as to killing dogs, and making returns thereof . . 466, 467 

POLLS AND PROPERTY, 

what subject to taxation 98, 99 

what exempt from taxation 100-104 

where taxed 112-120 

POOR AND INDIGENT PERSONS, (See Paupers.) 

towns to support 158 

who are 158, 161 

POUNDS AND IMPOUNDING CATTLE, 

town to maintain pound, and penalty for neglect .... 284 

penalty for injuring 284 

pound keeper to be appointed annually 284 

what beasts to be impounded 284, 285 

where and when shall be impounded 285 

costs to be paid by owner of cattle impounded 286 

beasts, how impounded when doing damage to land . . . 286 

how beasts recovered by owner 287, 288 

notice to be given by person impounding 288, 290 

remedy of owner if dissatisfied with claims of person im- 
pounding 289 

proceedings when no person to receive notice 289 

proceedings when sum found due is not paid by owner . . 290 

beasts rescued may be retaken 290 

penalty for making rescue 290, 291 

PRESIDENTIAL ELECTORS, 

practice in election of 50-52 

PRISON OFFICERS, 

to make certain returns 189 

PRIVATE WAYS. (See Town and Private Wats.) 



INDEX. 557 

PROVISIONS, 

inspection and sale of • 861-363 

Q. 

QUARANTINE, 

may be established by towns and board of health .... 433 
QUARRIES, MINES, &c, 

roads to, how made, &c 264-266 

K. 

RACE GROUND, 

not to be laid out or used without consent 486 

RAILROAD, 

crossing highways 250-263 

how shall cross 250,251 

bridges over railroads to be eighteen feet high, unless, &c. 250 

to have guards 251 

county commissioners and railroad commissioners to de- 
termine 251 

construction of crossings 251 

to keep certain structures in repair 252, 253 

county commissioners, jurisdiction of 252, 253, 255 

may alter course of highway 253 

special commission to make same 254 

proceedings thereon 254 

may be compelled to raise or lower way . 255 

supreme court to have jurisdiction in equity 255 

must have bell and steam-whistle on every engine .... 256 

must put up sign-boards 256, 257 

and gates and bars, when ordered 256, 257 

railroad police may be appointed by selectmen 258 

penalty for obstructing highway 258 

private track may be erected across highway, &c, by con- 
sent of selectmen 259 

route of, how determined 260-263 

fencing of 261, 262 

street railways 451-457 

RAILROADS, 

towns may subscribe to 21, 22 

towns may become associates in forming 22 

RAM, 

penalty for allowing, to go at large 291 

REAL ESTATE, 

taxes on, where assessed 113 

of deceased person, where assessed . 114 

subsequently divided • • 119 



558 INDEX. 

RECOGNIZANCE, 

how entered into by town 2 

RECORDS 29-32 

town, shall be made on linen paper 29 

how to be bound 29 

how to be preserved 29 

records of grants of land, &c, to be transcribed .... 29 

illegible, to be copied 30 

how certified , 30 

custody of records by clerks 30 

to be open for inspection and copying 31 

of ancient proprietors to be in custody of town clerk . . . 31 

of religious society which has ceased to exist 31 

penalties on towns for refusing to perform duties in refer- 
ence to 31, 39 

of soldiers and seamen who have served in the rebellion . 64 

REGISTRY AND RETURNS, 

of births, marriages, and deaths 419-424 

REMOVAL, 

from town vacates office .... 59 

REPAIRS OF HIGHWAYS 226-249 

taxes for, not to be paid in labor and materials 120 

section twelve, page two hundred and twenty-eight, virtu- 
ally repealed by last clause of section nineteen, page 

one hundred and twenty 120 

what constitutes " repair " 226 

"bridge," includes what 227 

how made in crossing stream . 227 

when two towns must keep in repair 227 

highways must be repaired at expense of town .... 228 

taxes for, assessed and collected as other taxes 228 

when must be expended 230, 231 

damages occasioned by repairs 231 

injuries occasioned by defective highway, and remedies 232-238 

town may be fined for neglecting to repair 238 

fines, how appropriated 238 

when town may recover of gas company on account of de- 
fects caused by company 248 

REPRESENTATIVES TO GENERAL COURT, 

election and return of 42, 47 

vacancy, how filled 45 

duty of town clerk, in his absence how performed .... 46 
ballots to be preserved 46 

RESERVOIRS AND RESERVOIR DAMS, 

provisions as to 535 

REWARDS, 

may be offered by selectmen, and proceedings .... 73, 74 



INDEX. 559 

ROCKETS, 

restrictions on use • 374 



S. 

SAFES, 

selectmen to provide 29 

clerk shall keep books and papers in . 29 

SALE, 

to pay taxes after distress 127 

SCHOOL BOOKS, 

school committee shall direct what to be used 299 

shall furnish same 300 

price of, assessed to parents 300 

SCHOOL COMMITTEE, 

how elected 296 

authority of 296 

duty of, when vacancy exists in board 296 

vacancy, how filled 296, 297 

shall continue in office how long 297 

number of, how increased or diminished 297 

committee shall keep record-book 297 

duty of, as to contracting with teachers 297,298 

authority and duty of, as to examination of teachers . . . 298 

may dismiss teacher 298 

shall visit schools 299 

shall require reading of Bible - 299 

shall direct what books shall be used 299 

shall procure text-books 300 

shall give notice to assessors of names of scholars supplied . 300 

may be required to appoint superintendent 301 

to have care, &c. of school-houses 301-303 

may cause sewing to be taught in school 304 

to superintend industrial schools 304 

returns to be made by ... . 309 

returns to be made to secretary of board of education . 309, 310 

report of condition of school to be made by 310 

what number of committee may sign certain returns and cer- 
tificate 312 

compensation of, when withheld 312 

duty as to attendance of children in school 313-315 

to regulate admission to high school 314 

may consent to attendance in another town 314 

SCHOOL DISTRICTS, 

abolished 303 

how may be re-established 303, 304 



560 INDEX. 



SCHOOL FUNDS, 

how invested 306 

income, how distributed 306-308 

how applied 308 

forfeiture of share by towns 307, 308 

SCHOOL-HOUSES, 

how furnished, &c .301,302 

land for, how taken, and remedy of owner 302 

SCHOOL REGISTERS AND RETURNS 309-312 

registers for returns, and blank forms of inquiry, how fur- 
nished 309 

committee to cause number of children to be ascertained . 309 

duty of school committee as to returns 309, 310, 534 

school committee to cause registers to be faithfully kept . 310 

informal or incorrect report 310 

disposition of report 311,312 

SCHOOLS 292 

shall be kept in every town six months in year 292 

subjects to be taught 292,304 

high schools, in what towns 292, 293 

subjects taught therein 292, 293 

Greek and French, in certain towns 293 

two adjacent towns may establish high school 293 

committee managing such school, how chosen, authority . 293 
expenses for house, &c. of such school, how paid .... 293 

schools for persons over twelve years of age 294 

female assistants in schools of fifty scholars 294 

duty of teachers to inculcate certain virtues 294 

duty of ministers of gospel, selectmen, and school commit- 
tee as to schools 295 

money for support of schools, how raised 295 

penalty for neglect to raise 295 

authority of school committee 296 

instructor of, must obtain and file certificate of qualifications 298 

school-houses 301 

two or more towns may form district to employ superin- 
tendent, proceedings 301 

industrial, how established 304, 305 

nautical, how established 305 

attendance of children in 313-315 

children unlawfully excluded, remedy 315 

SEALERS OF WEIGHTS AND MEASURES, 

how chosen 55 

when appointed by selectmen 57 

town may vote to have more than one sealer 334 

deputy sealers may be appointed 339, 340 

shall procure additional sets of weights, &c 334 






INDEX. 561 

SEALERS OF WEIGHTS AND MEASURES, — continued, 

seals of 334 

shall notify inhabitants to have weights, &c. sealed 334, 338, 339 
shall go annually, and oftener if necessary, to certain scales 

and adjust same . . 334,335,338,340 

penalty for neglect 335 

fees of 335, 338 

to go to houses in certain cases 336-339 

duty of, when complaint is made that incorrect scales, &c. 

are used 339 

incorrect scales, &c, how marked t 339 

compensation of 339 

how scales, &c. marked 340 

sealer or deputy may seize scales, &c, for evidence . 340, 341 

to test, &c. apparatus for linear measurements 341 

SELECTMEN, 

shall perambulate town lines 1 

not agents of town to bring suits without special authority 2 

may authorize construction of telegraph line 7 

may place certain books in library 8 

may grade sidewalks 10 

duty in relation to records 29 

duty of, in relation to town meetings 33, 37 

in relation to lists of voters 38, 52 

in relation to elections 38, 52 

when vacancy occurs in representative district and 

precept is received 45 

duty as to keeping check list 47 

ballot when vote is challenged 47 

shall keep register of voters 48, 49 

when not responsible for refusing vote 49 

election of 55-58 

to appoint certain town officers 57, 71 

may fill certain vacancies 57-59 

may appoint police officers 58 

may be elected for term of years 60 

vacancy, how filled 60, 61 

General duties of 70-74 

shall be assessors and overseers, when 70 

forfeiture for entering upon duties before taking oath . . 70 
may make regulations concerning use of vehicles .... 71 

perambulate town lines 72, 73 

penalty for neglect, &c 73 

may offer rewards 73, 74 

compensation of 74 

may make regulations as to use of highways 218 

duty as to highway surveyors, &c 228 

36 



562 INDEX. 

SELECTMEN, — continued. 

duty as to guide-posts 238, 239 

may authorize planting shade trees . 242 

may take land for gravel pits 246 

land to revert, &c 246, 247 

to permit aqueduct company to dig up streets 247 

may authorize building of watering places in highway . . 247 

duties of, as to railroads 252 

duty as to roads, to swamps, mines, &c 264-266 

closing private ways 267 

ascertaining location of ways, road, or street . 268 

to erect monuments at bounds of roads 269 

duty of, as to sewers and drains 271-276 

schools 295 

drawing, &c. jurors 324-329 

taking census 330-331 

to appoint weighers of beef 343 

measurers of grain 344 

weighers of hay, and remove 344, 345 

superintendent of hay-scales 344, 345 

inspectors of bundle hay 345 

measurers of upper leather 349 

may make regulations respecting measurement, &c. of 

marble and stone 350, 351 

to appoint inspectors of milk 351 

to establish fees of measurers of wood and bark .... 353 

to appoint weighers of coal 355 

persons to seize unsealed measures used, &c. in 
measuring charcoal, and prosecute offenders . 356 
to give certificate to applicants for licenses as innholders, 

&c 364 

may license persons to keep intelligence offices 367 

junk dealers 367 

penalty for keeping junk-shop without license 368 

may license pawnbrokers 368 

requisites of license 367, 369 

penalt}' for doing business without license 369 

to direct place of erection of certain stables .... 369, 370 

to license furnaces and steam-engines 370 

manner of proceeding 370, 371 

may suspend use of, &c 372 

authority as to stationary engines 373 

authority over use of fireworks 374 

shall not license exhibitions in which children take certain 

parts ^76 

may license theatrical exhibitions, shows, &c 376 

moving buildings 376 



INDEX. 563 

SELECTMEN, — continued. 

may license erection of certain buildings 376 

keeping billiard-tables, bowling-alleys, &c. . . 377 

law as to, how enforced 377 

running steamboats 377 

auctioneers 378 

sales by minors 380 

may grant certificate to hawker and pedler 381 

duties as to fires and fire departments 391 

offences against the public peace .... 403-410 
suppression of common nuisances . . . 411-414 

diseased cattle 415-418 

when to be board of health 425 

duties in reference to board of health 425 

to require vaccination of inhabitants 433 

duty as to street railways 451-457 

telegraph companies 458 

duty of, as to storage and sale of petroleum oil and its 

products 460-464 

duty of, as to herring fishery 473 

purchasing water rights 477-479 

duty of, under militia laws 480-484 

duty of, as to industrial statistics . . 485, 486 

SERVANTS. (See Masters, &c.) 386-390 

SETTLEMENT, 

how gained 177-184 

idle and indigent persons having none may be sent to work- 
house 188 

SEWERS AND DRAINS 271-276 

in what towns may be laid 271 

selectmen may make, maintain, &c, such as they deem 

necessary 271 

land for, how taken 271 

damages of owners, remedy for obtaining 272 

parties benefited by, how assessed 272, 276, 534 

remedy of party aggrieved by assessment 272 

town may provide for paying part of expense 273 

how constructed 273 

parties benefited by drain constructed at private cost shall 

contribute 273 

gone to decay, how repaired 273, 274 

opening common sewer, notice to be given, &c 274 

payment instead of assessment 275 

remedy of party aggrieved 275 

lien on real estate 275, 276 

plans of sewers, &c. to be kept with town clerk .... 275 
town may adopt system of sewerage ........ 275 



564 INDEX. 

SEWING, 

shall be taught in schools, when, &c 309 

SHADE TREES, 

towns may appropriate money for planting 5 

may be planted in streets 242-244 

penalty for injuring 243, 244 

SHEEP, 

protection of, &c. from dogs 465-472 

SHELL FISH, 

provisions concerning 475, 476 

SHIPS AND VESSELS, 

how taxed when owned by a copartnership 118 

SIDEWALKS, 

how established, &c 12 

how constructed, &c 239, 240 

ice and snow, how removed 240 

SINKING FUND, 

provisions relating to 15-21 

6MALL-POX, 

provisions with reference to 436 

SPENDTHRIFT, 

how put under guardianship 172 

SQUIBS AND SERPENTS, 

restrictions on use 374 

STABLE, 

permission of selectmen required to erect certain, penalty . 369 

STATE ALMSHOUSES, 

paupers may be sent to 169-171 

proceedings in reference to 170 

persons with certain diseases not to be sent to 170 

certain Indians may be sent to 171 

penalty for violation of provisions oi" law 171 

expenses of paupers, how paid in certain cases 176 

STATE WORKHOUSE, 

at Bridgewater, who may be committed 171 

STAVES, 

required size of 346 

cullers to be chosen ; duty of; fees of 347 

penalty for fraud of 347 

STEAMBOATS, 

running of, how licensed 377 

STEAM-BOILERS, 

not to be manufactured or used without fusible safety plug . 373 
penalty for removing such plug or using boiler without . . 373 

STEAM-ENGINES, (See Furnaces and Steam-Engines.) 

stationary engine to be licensed in certain cases .... 373 
erected without license may be abated 373 



INDEX. 565 

STREETS, 

selectmen may make rules as to passage through .... 71 

shade trees may be planted in 242 

STREET RAILWAYS 451-457 

SUPERINTENDENT OF SCHOOLS, 

how appointed, and compensation 301 

SURVEYORS OF LUMBER, 

election of 55 

SWAMPS, MINES, &c, 

roads to, construction of, &c 264-266 

T. 

TAXATION, 

penalty for designedly escaping taxation ....... 97 

persons and property subject to 98, 99 

of certain corporations 98, 99, 105-111 

persons and property exempt from taxation 100-104 

where polls and property shall be assessed 112-120 

domicile for 113 

personal property held in trust 116 

personal property of deceased person 117 

taxation of ships and vessels owned by copartnership . . 118 

of property of religious society 118 

personal property mortgaged 118 

personal property of partnership 118 

real estate subsequently divided 119 

TAXES, (See Addenda.) 

assessors of 75, 84 

assessment of 85-97, 532 

list of property subject to, to be brought in ; notice requir- 
ing bringing in 86 

penalty for false list 86 

requisites of list 86 

penalty for agreeing to assessment on limited amount with 

view to residence 87 

poll tax to be one-sixth of whole sum raised 88 

valuation and tax list, form and requisites of 88, 89 

discount on taxes 90, 91 

abatement of 86, 87 

what may be reassessed 95 

how far void for enormous or illegal assessment .... 95 

returns to be made by corporation 95, 96 

omitted, how assessed 96, 99 

not invalidated by reason of excess raised by taxation . . 97 

on certain corporations 105-111 

highway taxes payable in labor abolished 120 



566 INDEX. 

TAXES, — continued. 

collection of (see Collectors) 121-146, 532, 537 

city, county, and town, preferred debt in cases of insolvency 140 
highway taxes payable as other taxes 120, 228 

TELEGRAPH COMPANIES 458,459 

TELEGRAPH LINES, 

towns may construct, for their own use 7 

may authorize persons to construct, for private use ... 7 

proceedings in relation to construction, &c 7 

penalty for destroying 7 

TENANT, 

of real estate, may retain amount of tax, &c 113, 114 

THEATRICAL EXHIBITIONS, 

how licensed 376 

TOWN, 

word to include cities and districts, unless, &c 1 

lines of, to be perambulated 1 

duties and powers of selectmen as to perambulation ... 1 

TOWN HALL, 

land for, may be taken by town 7 

damages, how ascertained 7 

TOWN MEETINGS 33-37 

annual, when held 33 

meaning of " annual " when held for election of state officers 33 

how called and held 33, 34, 41, 42 

requisites of warrant and return thereon 33-36 

how called when selectmen refuse to call 36 

how called and held for election of presidential electors . 37 

when to be opened and closed 41, 42 

(See Addenda, 532, 533.) 

how conducted at elections 41, 52 

warrants for, to elect representatives to general court . . 42 
disorderly conduct in, how punished . 51 

TOWN OFFICERS, 

election and appointment of 55-61 

who exempted from serving „ 60 

TOWN WAY AND PRIVATE WAYS, 

laying out and discontinuance of 211-221 

selectmen may lay out, authority of 211, 212 

distinction between town way and highway 211 

town may discontinue 212 

proceedings, notice, &c. upon laying out 212 

damages, how determined and paid 212, 213 

selectmen must report laying out to town 213 

in case of different interests in land 213 

proceedings when way lies in two towns 214 



INDEX. 567 

TOWN WAY AND PRIVATE WAYS, — continued. 

when selectmen unreasonably neglect or refuse to lay out 

way 214, 215 

when town unreasonably refuses or delays to approve, &c. 

laying out by selectmen 215 

when town neglects to make way laid out by commissioners 215 

how town or private way may be discontinued 216 

party aggrieved by laying out, &c. may have jury . . . 216 

who is " aggrieved party " 217 

what report of laying out shall contain 218 

how trees, &c. to be taken off . . 218 

town shall not contest way laid out as above 218 

damages occasioned by laying out, &c. (see Betterment 

j Law), in addition to above 220, 221, 222-225 

TOWNS, 

general powers and duties of 1-28 

to be bodies corporate 1 

boundary lines of, to remain as established 1 

may sue and be sued in corporate capacity 2 

may appoint agents 2 

selectmen not agents of towns to bring suits 2 

may hold what estate 2 

powers of, with reference to estate 2 

how may convey same 2 

how may enter into recognizance 2 

for what purposes may grant money 3-5 

may take land for town hall 6 

may be restrained by supreme judicial court from illegal 

appropriation of money . . 7, 8 

may construct lines of telegraph 7 

penalty for injuring telegraph structures 7 

may establish and maintain public library 8 

what books selectmen may put in 8 

may make by-laws 9-14 

shall provide cabinet and bookcases 14 

shall return certain reports 14, 15 

entitled to certain documents 15 

limits to indebtedness 15-21 

may subscribe to railroads 21-28j 

may become an associate for formation of railroad corpo- 
ration 22 

may furnish public baths 26 

may make by-laws in reference to same 26 

may make sidewalks 27 

penalty for neglect to choose selectmen or assessors ... 57 

proceedings in such case 57 

to support paupers 158-176 



! 



568 INDEX. 

TOWNS, — continued. 

to repay persons for support of paupers when not liable • . 165 
may make by-laws as to pasturing cattle in streets . . . 244 

to prevent fast driving in streets, &c 244 

to provide ferries 245 

may take land for gravel pits 246 

land to revert, &c 246 

may take land to protect public way or bridge 247 

make by-laws concerning truants 319,321 

make regulations concerning junk dealers 369 

regulate keeping and storing gunpowder 374 

regulate storage and sale of camphene and explosive 

fluid 375 

create herring fisheries 473 

may purchase water rights 474, 477, 478 

expend money in decorating graves of soldiers and 

sailors 538 

TREASURER, TOWN, 

election of 55 

in case of vacancy, selectmen may appoint pro tempore . . 59 

duties of 147, 148 

bond of, to whom given, &c 147, 536 

how may prosecute suits 147 

may be collector of taxes 147, 536 

and appoint deputy collectors 147 

may issue warrant as collector for distraint of property, &c. 148 

shall render annual account 148 

duty as to sealing weights and measures 332-334 

TRUANT OFFICERS, 

duty of, as to attendance of children in school . . 313-315, 319 
TRUANTS, 

towns may make provisions concerning 319-323 

may appoint persons to prosecute 319-323 

minors convicted, how punished 320 

how discharged • • 320 

TURNPIKE, 

may be laid out as highway 209 

proceedings in relation thereto 209 

V. 

VACCINATION, 

of children, &c, of whom required, &c 315, 433 

VOTERS, 

who shall be, and requisites of 38 

collectors to keep and return to selectmen lists of tax-payers 39 
such lists to be posted up 40 



INDEX. 569 

VOTERS, — continued. 

selectmen to be in session to revise and correct lists . . 40, 41 

their authority in reference to 41 

penalty for giving false answer to selectmen ... 41, 51, 52 
penalty incurred by town officers for violation of duty in 

reference to 41, 51, 52 

naturalized citizen must furnish naturalization papers . . 41 
must furnish evidence of legal qualification to vote ... 41 

registers of 48, 49 

penalty for wilfully voting when not entitled .... 51, 52 

for giving more than one ballot 51, 52 

for aiding and abetting false voting 51, 52 

penalty for attempting to influence by bribery, &c. ... 51 

VOTES, 

for representatives, and how returned 42 

not to be received unless, &c 49 

votes for different persons in one envelope 49 

highest number of, to elect; how received, sorted, and 
counted 49, 50 

W. 

WARRANT EOR TOWN MEETING, 

requisites of, and of return thereon 33-37 

WATCH AND WARD 153-157 

how established 153-155 

duties and powers of 153, 157 

arms and badges of 153, 157 

who are liable to serve 154 

who exempt 154 

watch district, how established 153, 154 

money, how raised by 156 

taxes, how assessed and collected 156 

WATER RIGHTS, 

powers of towns to purchase 477-479 

WAY, 

dedication of, when chargeable 267 

selectmen may close 267 

town, how liable 267 

grading not a dedication 268 

location of, how made certain 268 

not to be laid out over burying-ground except 269 

stone bounds to be erected 269 

substitutes therefor 269 

penalty for not erecting . 269 

foot-ways may be laid out 270 



570 INDEX. 

WEIGHTS AND MEASURES 332-342 

what to be standards 332 

how to be kept 332, 333 

when to be sealed 333, 334 

vibrating steelyards may be used 335 

penalty for selling by weights not sealed . . 335, 339, 341, § 34 

hundred weight to mean what 335 

public weigher shall weigh according to above ..... 336 
measures of salt and grain to have a bar of iron across top 

in certain towns 336 

penalty for refusing to have measures, &c. sealed .... 337 

for altering same after they are sealed 337 

where to be sealed 338 

milk-cans to hold one or more quarts 338 

WOOD AND BARK, 

measurer of, duties and fees 353,354 

WORKHOUSES AND ALMSHOUSES 185-189 

towns to provide 185 

for what persons 185 

towns may unite in providing 186 

directors of, may be chosen by town or towns . • . 185, 186 

master and assistants may be appointed 186 

meetings, &c. of directors 185-187 

expenses of, how paid, &c 187 

authority of directors, &c 185-187 

profits of work of persons committed to workhouses, &c, 

how disposed of 188 

persons how discharged from 188 

management of persons committed to 188 

duty of master of 188 

controversies between master and overseers of poor . . . 188 

workhouse may be discontinued 189 

returns to be made 189 



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